and floor of the Subject Premises, and mold in the bathroom all of which Respondent
testified remain outstanding through the date of the trial.
Respondent testified Petitioner was on notice of these conditions through the
previous litigation between the parties, and has only made minor repairs during this time.
DISCUSSION
The
court finds that Petitioner is limited to seeking arrears through May 2013 when the last
lease expired. Petitioner offered no proof offered of an agreement to pay rent for any
month after the expiration of Respondent's renewal lease on May 31, 2013. Generally,
speaking it is well settled that a summary nonpayment proceeding must be predicated on
an agreement to pay rent [RPAPL 711(2)]. There was no testimony of any renewal offer
made after the expiration of the lease. Even if Petitioner had established such an offer,
there could not be an automatically deemed renewal pursuant to 9 NYCRR §
2523.5(c)(2) (Samson
Management LLC v Hubert 28 Misc 3d 29), and RPL §232-c is not
applicable, even for a finding of a month to month tenancy, as that would require
payment and acceptance of rent after the expiration of the lease, and in this case rent was
neither offered nor accepted for any period after the lease expiration, nor was there any
evidence of any express or implied agreement for any period after the expiration of the
lease. While Respondent did not raise this issue as an affirmative defense, he is not
obligated to do so as it is Petitioner's burden to prove an agreement to pay the rent sued
for as part of its prima facie case.
Based on the foregoing the court finds that Petitioner is limited in seeking arrears in
this summary proceeding to the period through May 31, 2013. The court finds that the