will be seen that in all cases a mutual agreement between the lessor and the original lessee that
the lease terminates, must be shown. It is not necessary that the agreement should be express; it
may be inferred from the conduct of the parties" (id. p. 463).
The Court based upon the statements of the plaintiff and defendant finds this was a "mutual
agreement of the parties to a lease...expressly manifesting any intention to recover the leasehold
to the landlord" and; furthermore, the Court finds that it was not necessary that the
agreement...be express; it may be inferred from the conduct of the parties" (Bedford v
Terhune, supra , p. 463).
The acceptable evidence shows that the landlord agreed to the 4/30/09 termination date as
evidenced by his comments during the 4/28/09 walk through testified to by the plaintiff and
affirmed by the defendant. In addition, there was a "surrender by operation of law...when the
[defendant landlord] did...[an] act inconsistent with the landlord-tenant relationship...indicating
[his] intent to deem the lease terminated" (Riverside Research Institute v KMGA, supra ,
p. 691-691). He terminated the tenant's occupancy of the apartment on 5/1/09 when he rented the
leasehold to new tenants giving them possession thus alienating the plaintiff's right of possession
under the 5/8/08 lease. The lease, then, having been terminated the surrender termination
agreement as outlined above as a matter of fact and law, the Court finds there was no violation of
paragraph 34 requiring a forfeiture of the $850.
General Business Law Section 349
In
Blend v Castor, 2009 NY Slip Op 52098 (u), NYLJ 10/1/09, p. 30, col. 1, the Court
stated:
General Business Law Section 349 has been found to apply to leases of residential property