When respondent began accepting rent from petitioner after the stipulated date of surrender by Murphy Marseilles, it created a month-to-month tenancy with petitioner and petitioner became a necessary party entitled to notice before his eviction. Respondent contends that no tenancy was created and to support this argument relies upon J.A.R. Mgt. Corp. v Foster (109 Misc 2d 693 [App Term, 2d Dept 1980]), where it was held that acceptance of rent after a tenant’s default and the issuance of the warrant of eviction did not restore the tenancy. However, the instant proceeding is distinguishable in that there was no default by petitioner, who was neither named nor served in the underlying proceeding. Rather, there was a stipulation of settlement before respondent learned of petitioner’s possession and an amended stipulation after respondent learned of petitioner’s possession and before the warrant was amended, reissued and executed. Therefore, while respondent may argue its acceptance of rent in December 1997 did not create a month-to-month tenancy with petitioner, this same argument is not persuasive after the amended stipulation and especially after respondent had accepted rent from petitioner for a portion of the 35th floor where Murphy Marseilles stated it had vacated the 35th floor. In order to recover that portion of the 35th floor, respondent must have given petitioner prior notice of the proceeding and at the very least included petitioner in the amended stipulation and reissued warrant. (See, Triborough Bridge & Tunnel Auth. v Wimpfheimer, supra, and authorities cited therein.)