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TS Tenant, LLC. v. Insurent Agency Corp.

(Civ. Ct. NY 4/19/06)

We represented: Petitioner TS Tenant, LLC

Manuel J. Mendez, J.C.C.

DECISION and ORDER
Upon the forgoing cited papers, the Decision/Order on this Motion is as follows:

The motion is denied; respondent is deemed a tenant, in a month to month tenancy pursuant to the provisions of RPL §232; not a licensee, pursuant to RPAPL §713; proper notice was served, the action will proceed, respondent should answer or be deemed in default in the eviction proceedings.

In this commercial non-payment proceeding, the respondent moves pre-answer to dismiss the underlying petition, alleging that there exists a license agreement, therefore a 10 day notice to quit pursuant to RPAPL Section §713 should have been served, instead of the 30 day notice to terminate a tenancy pursuant to RPL §232. The respondent alleges petitioner having failed to serve a notice to quit, did not properly notice the respondent, and petition should be dismissed.

FACTUAL BACKGROUND

On February 1, 2006 petitioner served the petition for this non-payment proceeding against respondent returnable February 14, 2006. On March 1, 2006, respondent prepared and filed a motion to dismiss returnable March 7, 2006. The motion was further adjourned to April 17, 2006, it was then orally argued before this Court.

The petitioner indicated initially there was a sublease to the respondent for a term that expired on March 30, 2005. The document titled "Temporary License Agreement" was then entered into between the parties, it expired on June 30, 2005. (See Exhibit 1 to petitioner's Affirmation in Opposition). On or about, August 15, 2005, the parties agreed to extend the agreement to October 31, 2005 by a written agreement, (see Exhibit C, annexed to Respondent's Reply Affirmation). The respondent's motion indicates the petition and the underlying predicate notice erroneously refer to the respondent as a tenant, rather than the allegedly more apt description of the relationship between the parties, that of a licensor/licensee. Respondent indicates the agreement between the parties has always been Temporary License Agreement and was given that title, (see Respondent's Exhibit B annexed to the moving papers, and Exhibit C annexed to Respondent's Reply Affirmation). The petitioner contends, although the agreements were titled Temporary License Agreements they were in reality leases extending the respondent's time to remain on the premises. The agreements, petitioner indicates, contain provisions found in a lease and not in a licensing agreement; the term "Temporary license Agreements," is inaccurate when one investigates the terms of the agreements.

LEGAL ANALYSIS

The collection of rent is a key factor of a month to month tenancy, under RPL section 232. If a tenant holds over, the landlord may for any period subsequent to the expiration of such term, absent an agreement to the contrary, upon acceptance of rent, create a tenancy from month to month commencing on the first day after the expiration of the initial term. (See, 28 Mott St. Co. v. Summit Import Corp., 34 AD 2d 93 (1st Dept., 1970)).

A lease requires a term of period and a determination of whether the contract or authority granting the right to enter the land. It confers upon the party entering an interest which is exclusive; a lease requires the absolute possession and control of the property to another for an agreed upon rental. (See Nextel of New York, Inc. v. Time Management Corp., 297 AD2d 282, 746 NYS2d 169 (2nd Dept., 2002); Ark Bryant Park Corp. v. Bryant Park Restoration Corp. 285 AD 2d 142, 730 NYS 2d 48 (1st Dept., 2001)).

A license gives no interest in land, it merely provides an non-exclusive right to enter the land to perform an act. It has been held that the determination of whether an agreement is license depends on the intentions of the parties. (See Miller v. City of New York, 15 NY2d 34; Linro Equip. Corp. v. Westage Tower Association, 233 AD2d 834; Dime Laundry Serv. V. 230 Apts., Corp. 120 Misc. 2d 399; and Nextel of New York, Inc. v. Time Management Corp., 297 AD2d 282, 746 NYS2d 169 (2nd Dept., 2002).

The Temporary License Agreement, dated March 29, 2005, annexed to the Respondent's papers as Exhibit B, incorporated the terms of a September 1999 Loft Lease Form at paragraph 6, indicating the intentions of the parties to maintain a landlord and tenant arrangement. In addition, even if the earlier agreements were to be construed as establishing exclusively license arrangements; the August 15, 2005 agreement, Exhibit C annexed to Respondent's Reply Affirmation, at paragraph 6., specifically states:

Insurent shall have the right, exercisable by written notice received by Owner not later than September 30, 2005, to enter into a lease for the entire 11th floor upon the basic business terms indicated in the attached sheet, with all other lease terms being subject to and conditioned upon a document acceptable in all respects to Owner (failing which Owner shall be under no obligation to enter into a lease), and with the further provision that the Insurent executes such lease not later than October 19, 2005.
There is no indication that a lease was entered into between the parties but clearly pursuant to the agreement there was no intention to continue under the Temporary License Agreement subsequent to October 31, 2005. Respondent remained on the premises subsequent to October 31, 2005; no lease was presented to petitioner, but respondent paid rent through December of 2005; extending the agreement on petitioner's terms and creating a month to month tenancy pursuant to RPL §232. Respondent's possession of the property is exclusive, the petitioner did not have access to the property. Respondent remained on the premises without rent as of January of 2006; preventing petitioner from the access and use of the property.

As such, the motion to dismiss is denied, respondent is deemed a tenant, in a month to month tenancy pursuant to the provisions of RPL §232; not a licensee, pursuant to RPAPL s713.

The foregoing shall constitute the Decision and Order of the Court.

Dated: April 19, 2006

MANUEL J. MENDEZ
Judge, Civil Court