This is a statutory proceeding for nonpayment of rent pursuant to § 711(2) of the Real Property Actions and Proceedings Law (hereinafter "RPAPL"). Petitioner seeks rent for the months of February through June of 2012. Respondent started paying continuing rent from July 1, 2012, the commencement date of his own lease, forward, and those months are therefore not in issue. Respondent moves for dismissal of the petition because there was no lease or other rental agreement between the parties for the period between the expiration of his late mother's lease on January 31, 2012 and June 30, 2012. Respondent's mother, Jane McEntyre, died November 9, 2011. Respondent asserts, and petitioner concedes, that after his mother's death, at least as early as December 14, 2012 respondent informed petitioner by letter that his mother had died, and he requested that the renewal lease be issued in his name as successor to his mother's rent stabilized tenancy. The owner did not accede to his request, but demanded various documents to [*2]back up Mr. McEntyre's claim that he had resided with his mother in the subject apartment for at least two years before her passing. Owner finally did offer respondent a lease, but not until May, 2012, with said lease to commence July 1, 1012, at least 90 days after the offer was made, as required by § 2523.5(c)(1) of the Rent Stabilization Code.

Respondent argues that had petitioner recognized respondent's right to succeed immediately, and simply renewed his mother's lease in his name, he would have continued as a tenant. However, respondent's counsel claims that since there was no lease or other rental agreement between these parties from February 1, 2012 until July 1, 2012, the commencement date of respondent's lease, there existed no rental agreement under which petitioner can hold respondent in default pursuant to RPAPL 711 (2). It is noted that on or about December 6, 2011, the owner rejected rent tendered by Travers McEntyre because it would not accept rent from anyone other than the named tenant of record. Petitioner argues that since respondent succeeded to his mother's lease, he acquired not only the right of succession, but the responsibility to pay rent as a tenant as of the date of his mother's death, the day his right to succession matured.

This is a statutory nonpayment proceeding pursuant to RPAPL 711(2), which requires as its basis, and states, in pertinent part, "[t]he tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held,...." Thus, for petitioner herein to have a cause of action, the respondent must have defaulted in the payment of rent, pursuant to an agreement under which the premises are held. Here, owner is suing respondent for rent for a period after expiration of a lease between the owner and respondent's mother on January 31, 2012 and July 1, 2012 when a new lease between the owner and respondent finally commenced. Respondent claims he advised the superintendent of his mother's death in November, 2011. However, it is undisputed that the owner learned of Jane McEntyre's death as of December 14, 2011, the date respondent's attorney wrote to the owner and requested that the renewal lease be issued to respondent as successor to his mother. Various documents substantiating respondent's residence in the apartment for at least two years before his mother's death were annexed to this letter. Nonetheless, the owner demanded further documentation. Thus, no renewal lease was offered at that time. It was not until May, 2012 that the owner offered Travers McEntyre a lease in his own name. As stated above, this lease commenced July 1, 2012, a date at least 90 days after the offer was made. Respondent signed that lease, and commenced paying rent thereunder for the period commencing July 1, 2012 and continuing thereafter.

Petitioner now sues for rent in a statutory nonpayment eviction proceeding pursuant to RPAPL 711(2), seeking "rent" for the period from February 1, 2012 through June 30, 2012. However, there was no lease or other rental agreement, written or oral, between the parties between February 1, 2012 and June 30, 2012. Certainly no attornment or any rent payment was accepted by owner from respondent during this time. Thus, no rental agreement pursuant to which respondent can be held in default under RPAPL [*3]711(2) existed during that time period.

This rule has been made abundantly clear by the Appellate Term, Second Department, in 615 Nostrand Avenue Corp. v Roach, 15 Misc 3d 1 (App term, 2nd Dept 2006). As in 615 Nostrand, respondent herein paid all rent starting with the first month of a lease that landlord belatedly offered, and thereafter. Before that, unlike a rent stabilized tenant who remains after expiration of a prior lease, this respondent, like the tenant in 615 Nostrand, never had a lease with petitioner before July 1, 2012. The only prior lease here was between owner and respondent's mother. The owner herein refused respondent's request for a lease renewal until a few months later. Thus, there was no continuing agreement between the owner and respondent, who had never been a party to a lease with petitioner, and who never attorned to petitioner until after he was granted a lease in his own name. As the Appellate Term stated in 615 Nostrand at 15 Misc 3d 4:

It is elementary that a nonpayment proceeding must be predicated on a default in rent owed "pursuant to the agreement under which the premises are held" (RPAPL 711[2]; see Matter of Jaroslow v Lehigh Valley RR Co., 23 NY2d 991, 993[1969]; United Sec. Corp. v Suchman, 307 NY 48 [1954]; Licht v Moses, 11 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2006]). Thus, once the post-December 2003 arrears were tendered, this nonpayment proceeding could not be maintained solely for the pre-December 2003 use and occupancy....

It is noted that petitioner's counsel actually cites the dissent in 615 Nostrand in support of owner's position. This effort must be unavailing.

Here, as in 615 Nostrand, respondent tendered all rent starting with commencement of the very first lease in his name. Once he paid all rent due under his lease, respondent cannot be sued for rent covering a period before the owner ever recognized him as a tenant. An agreement, including a rental agreement, requires consent of both parties to the agreement. In Jaroslow v Lehigh Valley RR Co., 23 NY2d 991,993 (1969), the Court of Appeals held, "[a]n action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent." Here, as in Jaroslow, the owner cannot hold the occupant liable for rent for a period when there was no lease or other rental agreement between the parties, written or oral.

245 Realty Associates v Sussis, 243 AD2d 29 (1st Dept 1998), is not to the contrary. There, the Court was dealing with the right of a prevailing party in a holdover proceeding to collect attorney's fees as the successor-in-interest to his deceased brother's expired lease, not his obligation to pay rent. The Appellate Division held that although the successor-in-interest is not yet a tenant until the owner finally provides him with a lease, he still has a right to succeed to his brother's entitlement under the expired lease to collect attorneys' fees as the prevailing party in the holdover proceeding. Indeed the Court noted "the difference between the occupant's status as a successor-in-interest and his eventual [*4]status as a tenant in his own right. There is a marked difference between the two....Under ordinary circumstances, the status of a successor-in-interest to the original tenant may have only limited relevance since no lease agreement has yet been entered into. The successor-in-interest is not yet a tenant." 245 Realty Associates v Sussis, 243 AD2d 29, at 35.

Here, as in Sussis, respondent was a successor-in-interest, and his eventual status as a tenant in his own right, with all its attendant obligations, did not mature until a lease was finally provided to him. Thus, there was, between the parties to this statutory nonpayment eviction proceeding, no "agreement under which the premises are held," pursuant to RPAPL 711(2), between February 1, 2012 and June 30, 2012, the period for which owner sues respondent for rent in this proceeding. Thus, the petition herein, which rests for its basis on RPAPL 711(2), must be dismissed.

The owner, however, is not without remedy. It is free to commence a plenary action based upon quantum meruit for the value of respondent's use and occupancy of the subject apartment for the period from February 1, 2012 until June 30, 2012, when respondent resided in the subject apartment without paying for his use and occupancy of the premises. For the above reasons, this statutory nonpayment proceeding pursuant to RPAPL 711(2) is dismissed, without prejudice to a plenary action by owner for the value of respondent's use and occupancy of the apartment during the period for which rent is incorrectly sought in this summary eviction proceeding. Because the petition has been dismissed for the above reasons, the Court need not and shall not address the other arguments raised by respondent for dismissal.

The foregoing constitutes the Decision and Order of this Court.

Dated: New York, New York___________________________

April 9, 2013PETER M. WENDT, J.H.C.