TERMINATING A COMMERCIAL MONTH TO MONTH TENANCY

The "Housing Stability and Tenant Protection act of 2019" offers some additional defenses and protections to both commercial and residential tenants but not all apply to commercial leases.

Aviv Dev. Corp. v. Weathers, NYLJ July 29, 2020, Date filed: 2020-07-16, Court: Civil Court, Queens ,Judge: Judge Sally Unger, Case Number: 50385/20;

"Upon the foregoing cited papers and after oral argument, the Decision/Order on the pre-answer motion to dismiss the petition, is as follows: Aviv Development Corp., (hereinafter “Aviv” or “petitioner”) is the owner of the commercial premises located at 107-21 Guy R. Brewer Boulevard, Jamaica, NY 11433 (hereinafter “subject premises”). Respondent Neal Weathers (hereinafter “Weathers” or “respondent”) is the commercial tenant of the subject premises. The parties did not execute a written lease for the subject premises, but rather established a month to month tenancy which undisputedly commenced approximately ten years ago. The petitioner served the respondent with a thirty-day notice of termination (hereinafter “NOT”) and commenced the instant holdover summary eviction proceeding thereafter.

On January 8, 2020, the petitioner commenced the instant holdover summary eviction proceeding against the respondent seeking a judgment of possession, a money judgment, and related relief. The notice of petition and petition were served on January 13, 2020. Respondent’s pre-answer motion was served and filed with the court on March 5, 2020, in accordance with the schedule set by the Court.
The instant motion is premised upon an alleged notice requirement pursuant to Real Property Law §232-a, which provides that, regarding tenancies within the City of New York,

No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant’s term unless pursuant to the notice period required by subdivision two of section two hundred twenty-six-c of this article, or for a tenancy other than a residential tenancy at least thirty days before the expiration of the term, the landlord or the landlord’s agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom. (Emphasis supplied)

The issue raised by respondent is whether a landlord of a commercial tenant in occupancy as a month to month tenant in excess of two years is required to serve a 90 day NOT prior to commencing a summary eviction holdover proceeding, rather than the 30 day NOT employed in the case at bar.
Respondent relies upon the statute’s reference to RPL §226-c as the measure of the amount of notice required to be afforded to residential tenancies in its effort to apply RPL §226-c to commercial tenancies. The amount of notice required in RPL §226-c is a progressive measure based upon the length of time of a tenant’s occupancy. Respondent seems to view the interplay of the two statutes as a means to latch onto the more generous notice given to residential tenants and utilize it for commercial tenancies.

Respondent’s basic theory is that based upon the awkward wording of the statute, that provision of the RPL pertains to commercial tenancies as well as residential ones. Respondent argues that the commencement of the sentence with the phrase “No monthly tenant” does not allow for an exception to that general application of the statute. Respondent also discusses the diction of the statute at length and criticizes the Legislature for its placement of the word “or”. According to respondent’s premise, where a term stating an absolute begins a sentence, a qualifier or exception cannot follow in the same sentence, or if it does, it must be ignored or viewed as an ambiguity at best. Respondent asserts that the wording of the statute created an ambiguity and the “plain language” of the statute must lead to the conclusion that there is no restriction on its applicability.

The petitioner takes the position that the legislative history is relevant to the intent behind the enactment of the statute. From the historical perspective, the petitioner posits that the New York State Standing Committee on Housing, Construction and Community Development, the group that proposed the bill, made clear in their annual report of 2019 that certain amendments such as RPL §232-a were drafted for all residential tenants. Petitioner contends that the intent of the Legislature was to provide increased notice provisions for residential tenants only.

While respondent’s interpretation of RPL §232-a is creative, it is simply not valid. The Court does not recognize any alleged ambiguity raised by respondent. To follow respondent’s reasoning, none of the provisions of the 2019 new statutory scheme should apply to commercial tenancies, because the title of the act is literally “Housing Stability and Protections Act”. Based upon the respondent’s reasoning, the respondent’s necessary conclusion, based upon the title of the entire act, would preclude application of any portion of it to commercial tenancies, because there is no reference to commercial tenancies in the title. Clearly, this is not so. The Legislature drafted some provisions which apply to all tenancies and others that only are applicable in residential ones.

RPL §232-a merely contains what is referred to as a “carve out” for commercial tenancies. While the opening of the sentence refers to all month to month tenancies in the City of New York as requiring the amount of notice set forth in RPL §226-c (i.e. a minimum of 30, 60 or 90 days depending on the length of the tenancy), the statute then carves out commercial tenancies as an exception in which a 30 day notice is sufficient, regardless of the length of time of the tenant’s occupancy. There is nothing ambiguous about it.

Moreover, RPL §226-c, which provides the various time frames for service of the NOT based upon length of tenancy, specifically discusses residential tenancies. The title of the section is “Notice of rent increase or non-renewal of residential tenancy”. The first paragraph of the statute refers to renewal of “the tenancy of an occupant in a residential dwelling unit”. The second paragraph of that statute opens with a discussion of the “cumulative amount of time the tenant has occupied the residence”. RPL §226-c is wholly inapplicable to all commercial month to month tenancies.

Conclusion

The wording of RPL §232-a is crystal clear. Reference to legislative intent is not necessary in this circumstance, because there is no ambiguity in the wording of the statute. The intertwining of RPL §232-a with RPL §226-c to determine the appropriate measure of time to serve a NOT is limited to residential tenants. Landlords of commercial month to month tenants in New York City are not required to serve a NOT 60 or 90 days in advance of termination. A 30 day NOT suffices.
The respondent’s motion is denied. Respondent shall have 10 days from the date of this decision to serve and file his answer."