Defendant Regina Metropolitan Co. appeals from an order of the Civil Court, New York County, dated May 1, 2002 (Eileen A. Rakower, J.) which denied its motion to vacate the dismissal of its third-party complaint against Sandra Kamerman in Action No. 1 and to consolidate Action No. 1 and Action No. 2 for a joint trial and granted plaintiff Leon Sutton's cross motion for summary judgment on his complaint in Action No. 1 and for summary judgment [*2]dismissing landlord's complaint as against him in Action No. 2.

PER CURIAM:

Order dated May 1, 2002 (Eileen A. Rakower, J.) affirmed, with $10 costs.

Civil Court properly granted plaintiff Sutton's cross motion for summary judgment in this action to recover a security deposit against defendant landlord and summary judgment dismissing landlord's related action for unpaid rent as against Sutton accruing after the original two-year lease expired.

The record reveals that tenant Sutton clearly notified landlord in early January 2000 that he would not renew the lease for an additional term, that he had not occupied this unregulated apartment with his co-tenant (Sandra Kamerman [his former fiancée]) and that he would surrender his interest in the leasehold to the owner. As part of that notice, Sutton also demanded return of his security deposit after the April 30, 2000 lease expiration date. Defendant landlord then sent a new two-year lease commencing May 1, 2000 solely to Kamerman, which she never signed. By letter dated May 4, 2000, landlord instructed Kamerman that since she was "now the sole tenant of the apartment," she was required to replace the security deposit, which Kamerman failed to do. Moreover, between May 2000 and March 2001, landlord accepted rent payments from Kamerman alone, who remained in possession, at a rate higher than the last rent reserved under the expired lease.

On these facts, Kamerman, as co-tenant, cannot, by the act of holding over, create a new contract binding a nonconsenting tenant (Sutton) who is not in actual possession (see Foster v Mulcahey, 196 App Div 814 [1921]). Furthermore, landlord implicitly accepted Sutton's refusal to renew the lease (see Stahl Assocs. Co. v Mapes, 111 AD2d 626 [1985]; see also Riverside Research Inst. v KMGA, Inc., 68 NY2d 689 [1986]). Thus, Sutton was released from any further liability for rent accruing after April 30, 2000 (see Deer Hills Hardware v Conlin Realty Corp., 292 AD2d 565 [2002]) and was entitled to the return of his security deposit, less rent unpaid ($15) as of the original lease expiration date.

This constitutes the decision and order of the court.
Decision Date: June 13, 2005