[*1]
Hain v Zwitzer
2008 NY Slip Op 52329(U) [21 Misc 3d 1133(A)]
Decided on November 20, 2008
Rochester City Ct
Morse, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through March 12, 2010; it will not be published in the printed Official Reports.


Decided on November 20, 2008
Rochester City Ct


Judith Hain, Plaintiff,

against

Jay Zwitzer, Defendant.




08 - SC - 10763



cc: Judith Hain

Lorenzo Napolitano, Esq. (counsel for the defendant)

Thomas Rainbow Morse, J.



This court has taken testimony regarding plaintiff's claim for rent pursuant to a written self-renewing residential lease agreement. The defendant lived in the premises for the first year of the written lease then purchased a home and vacated the property during the "automatic renewal" period in July, 2007. The monthly rent was $ 675 and the lawsuit involves rent allegedly owed by the defendant between the time he left and the point the property was re-rented in April, 2008. For the reasons which follow, the court determines that the plaintiff is entitled to a judgment for a portion of the amount requested.

The document which purports to be a "lease" contains a heading bearing the names and signatures of the parties.[FN1] The first sentence of the one paragraph "lease" deals with occupancy and use of the premises which is not germane to this lawsuit. [FN2] The rest of the paragraph contains the "automatic renewal" provisions upon which the plaintiff relies as her basis for recovery. That section provides that

It is mutually understood and agreed the lease shall be renewed from term to term upon expiration of each term, without the necessity of a new lease unless either party on or before 60 days proceeding (sic) the termination of any term, shall give the other [*2]written native (sic) of intention to terminate this agreement. The provision is intended to give the resident reasonable time to make satisfactory arrangements should the landlord elect to terminate, and to give the landlord reasonable time to lease the premises from the expiration date.


The plaintiff indicated before this court that she has used this "lease" provision for years. She is not alone.

Such provisions derive from English real property law and have been in existence in our state since the time of the revolutionary war.[FN3] By 1915, however, the Court of Appeals noted that while they are enforceable, "[c]ovenants by a landlord for continual renewals are not favored for they tend to create a perpetuity." [FN4] Two decades later, New York restricted the use of such clauses in leases when it required the landlord to provide a tenant with written notice of an imminent automatic renewal in order for such a provision to be valid.[FN5] Under our law,[n]o provision of a lease of any real property or premises which states that the term thereof shall be deemed renewed for a specified additional period of time unless the tenant gives notice to the lessor of his intention to quit the premises at the expiration of such term shall be operative unless the lessor, at least fifteen days and not more than thirty days previous to the time specified for the furnishing of such notice to him, shall give to the tenant written notice, served personally or by registered or certified mail, calling the attention of the tenant to the existence of such provision in the lease.[FN6]

In upholding the statutory predecessor of this provision, the Court of Appeals noted that the law "was enacted solely for the protection of the tenant." [FN7] Specifically, another court found that "the automatic renewal clause in leases was indubitably a trap for the unwary or forgetful tenant."[FN8] [*3]Moreover, the Third Department has found that a landlord's failure to provide the required written reminder precludes recovery from the original tenant even when the tenant subsequently sub-let the premises. [FN9] Lastly, the Fourth Department has held that "[c]ovenants for renewal are to be construed most favorably to the lessee."[FN10]

In this case, it is uncontested that the landlord failed to provide the tenant with a written reminder of the lease's automatic renewal. Such inaction renders the automatic renewal clause in this case unenforceable as against the public policy of this state.

While the discussions between the landlord and tenant in the late spring and early summer of 2007 gave the landlord ample notice that the tenant would be vacating the premises at the end of July, common courtesy would dictate that, at the very least, he do something more than disappear leaving the keys on the kitchen counter.

Since the apartment was left undamaged the defendant would ordinarily be entitled to return of his security deposit, but before this court he indicated it could be applied to any rent this court might determine was due and owing. Because the defendant/tenant did not return the phone calls placed by the plaintiff/landlord and she did not have final proof that he vacated the premises until she entered it in early August, the court finds that the plaintiff is entitled to keep the security deposit as rent for that month.

Consistent with the court's responsibility "to do substantial justice between the parties according to the rules of substantive law," [FN11] consonant with its authority to "condition the entry of such judgment upon such terms as the court shall deem proper," [FN12] and after due deliberation and careful consideration it is hereby

HELD that the defendant owes the plaintiff rent for the month of August, 2007. And it is further

HELD that having failed to provide notice pursuant to General Obligations Law §5-905, the plaintiff is not entitled to any rent from the defendant for the period after September 1, 2007. And it is therefore

ORDERED that the $675 security deposit held by the plaintiff may, with consent of the defendant, be applied towards the August, 2007 rent. And it is further

ORDERED that since the plaintiff is not entitled to any money other than that which she [*4]has already been given, this action is dismissed.

The foregoing constitutes the decision and order of the court.

ENTER,

Dated:November 20, 2008____________________________________

Rochester, New YorkHon. Thomas Rainbow Morse, JCC

cc:Judith Hain

Lorenzo Napolitano, Esq. (counsel for the defendant)

Footnotes


Footnote 1:Those entries are followed by both handwritten and pre-printed provisions at the beginning, not he end of the document.Based on the ruling in this case, it is not necessary for the court to address the placement of the signatures other than to say that the better, most common and perhaps only legally binding location for signatures is at the end of the document signalling that the parties agree to all of the foregoing.

In addition, by a handwritten notation, the document notes that "Tenant agrees to follow Westage at the Harbor rules..." Presumably, those rules contain provisions outlining the reciprocal rights and responsibilities which normally comprise a residential lease.

Footnote 2:The pre-printed lease paragraph provides that: "[t]he tenant agrees she will not use or occupy said premises for any purpose except as a dwelling, orin (sic) any manner deemed extra hazardous on account of fire, nor use said premises in an improper manner, and will not assign this lease or sublet said premise, or any portion thereof, without the written consent of the landlord."

Footnote 3:Rutgers v. Hunter, 6 Johns. Ch 215 (Chancery Court of New York, 1822)("An agreement to make leases with covenant for perpetual renewal, each lease to contain the same covenant forever, was a species of contract which Lord Thurlow thought ought not to be executed. But Lord Eldon (16 Vesey, 84.) disagreed to that doctrine, on the ground, that such contracts had been too long covered and sanctioned by decisions. I do not mean to say, that such covenants are not valid; but I contend, only, that they must be clearly and certainly made, and are not to be deduced by construction from a covenant to "renew the lease," without saying more.")

. To avoid the rule against perpetuities (e.g. that property can't be alienated for a period in excess of a life in being plus 21 years), such automatic renewal clauses typically had to be exercised every twenty-one years).

Footnote 4:Burns v. City of New York, 213 NY 516, 520 (1915).

Footnote 5:McKinney's Real Property Law § 230 (L. 1936, ch. 702.). This section of that statute has now been moved to the General Obligations Law.

Footnote 6:McKinney's General Obligations Law § 5-905

Footnote 7:J. H. Holding Co. v. Wooten, 291 NY 427, 430 (1943). See also Boyd H. Wood Co. v. Horgan, 291 NY 422 (1943).

Footnote 8:Kuppers v. Tortora Agency, Inc. 63 Misc 2d 656, 658(N.Y.C. Civ.Ct., 1970).

Footnote 9:Malone Associates v. Grand Union Co,. 249 AD2d 830(3rd Dept.,1998)

Footnote 10:DeSantis v. Kessler, 83 AD2d 766, 767(4th Dept.,1981).

Footnote 11:Uniform City Court Act § 1804. In large part, proceedings in small claims "shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence." Id. Importantly, while Supreme Court rules may apply in small claims "so far as the same can be made applicable and are not in conflict with the provisions of [the UCCA]; in case of conflict, the Provisions of [the UCCA] shall control." UCCA § 1804. See Williams v. Roper, 269 AD2d 125 (1st Dept. , 2000) app. dism. 95 NY2d 898 (2000); see also Cruz v. Beechwood RB LLC., 11 Misc 3d 126(A) (N.Y.Sup.App.Term,2006).

Footnote 12:Uniform City Court Act § 1805(a).