Plaintiff commenced this action to recover rental arrears in the amount $18,777.56 with interest from defendants due to their alleged breach of a lease agreement between the parties for a residential apartment. The sum plaintiff seeks represents rent due and owing from February 1, 2018, through November 17, 2018, at $1,850.00 per month.

On February 25, 2025, this court conducted a non-jury trial on the FTR. Plaintiff appeared by counsel, presented one witness, Joshua Frankel ("Frankel"), and introduced three exhibits, marked Plaintiff's A-C. Defendants Luis Estrella and Nurys Garcia (collectively, "defendants"), appeared pro se, and each testified at trial with the assistance of a Spanish language interpreter. Defendants introduced three exhibits, marked Defendants' 1-3.

Frankel testified that he is employed by plaintiff's management company. He stated that once a lease for an apartment is executed, he is responsible for maintaining a copy of the lease and a Tenant Statement of rent due and paid. He produced a copy of the lease signed by defendants for apartment B2, located at 3045 Grand Concourse in Bronx County ("Apartment"). [*2]The term of the lease began October 1, 2016, and expired on September 30, 2017 ("Lease") (Plaintiff's Exhibit A). Frankel testified that defendants did not surrender the apartment at the expiration of the Lease and stopped paying rent from February 2018 until the occupants in the Apartment were evicted in November 2018. He testified that, by fax dated September 29, 2017, defendant Garcia indicated that defendants would not renew the Lease but requested that they be allowed "to reside in the apartment until we find a place" (Plaintiff's Exhibit C). According to Frankel, once the Lease expired, the defendants were considered month-to-month tenants. He stated that, commencing in February of 2018, rent was no longer being paid and proffered a Tenant Statement to support this claim (Plaintiff's Exhibit B). Frankel stated that an eviction proceeding was subsequently commenced in Civil Court, Housing Term. He testified that on November 7, 2018, a Marshall executed a warrant of eviction of the occupants in the Apartment and plaintiff regained possession of the Apartment. According to Frankel, the amount of rent due and owing was $20,627.56, but defendants' security deposit was credited to their Tenant Statement thereby leaving an outstanding balance of $18,777.56.

Defendant Estrella testified credibly. He testified that when the Lease ended in September of 2017, he and his mother paid use and occupancy each month until December of 2017, when they relocated to their current apartment ("current apartment"). Defendant Estrella further testified that his mother informed Gitana Andujar ("Andujar"), the real estate broker who helped defendants find the Apartment, that they were surrendering the Apartment in December of 2017. He stated that neither he nor his mother resided in the apartment after December of 2017 because they had already relocated to another apartment (Defendants' Exhibit 2).

Defendant Garcia testified credibly. She testified that she met Andujar because Andujar's business was close to where she worked. She testified that Andujar helped her and defendant Estrella "find the Apartment." According to defendant Garcia, Andujar used to work for Frankel, although she was not certain whether Andujar still works for Frankel now. Defendant Garcia testified that she surrendered the keys to the Apartment to Andujar on December 15, 2017. Defendant Garcia testified that "every time we had to speak with [plaintiff], [Andujar] was the one that would serve us. She was the one who wrote the letter and sent it by fax asking for the three months, which they were paid for." Defendant Garcia testified that Andujar "told me to give her the key by instructions of the owner and that [Andujar] would rent the Apartment to another tenant." Defendant Garcia further testified that when Andujar told defendant Garcia to give her the keys, she did not know that Andujar was "supposed to give her documentation back." Defendant Garcia stated that the "only error [she] committed was giving the key to [Andujar]" when she moved out.

It is plaintiff's burden to establish their cause of action by a preponderance of the evidence. "The evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted; mere proof of a possibility is insufficient to establish a fact by a preponderance of the evidence" 8 Carmody-Wait 2d § 56:14.

Upon the expiration of the Lease, a month-to-month tenancy will arise when tenant offers, and landlord accepts, rent (see Real Property Law § 232-c). Furthermore, a month-to-month tenancy is created and is in effect for as long as the tenant remained in possession of the premises under the same terms and conditions (Trec v Cazares, 185 AD3d 866, 867 [2d Dept 2020]).

Here, plaintiff failed to establish by a preponderance of evidence that a month-to-month tenancy existed after January 2018. The Tenant Statement shows that rent was last paid January 2018. "[W]hen the month-to-month tenancy expires at the end of any given month, a new agreement is created only by paying rent on or about the first of the next month, and, if no rent is paid, there is no longer a valid contract under which to sue for past due rent" (Mendez v Hidalgo, 82 Misc 3d 391, 397 [Civ Ct, NY County, 2023]). Whereas here, no rent was paid by defendants on February 1, 2018, there was no new agreement created, and thus, defendants cannot be found in breach of such an agreement. Even assuming, arguendo, that a new agreement was somehow created, plaintiff nevertheless failed to establish that the defendants remained in possession of the Apartment after December 2017. The record is devoid of any proof that defendants were the "occupants" who were evicted from the Apartment. Indeed, when asked on cross-examination as to what Frankel stated to the occupants during the eviction, Frankel testified that he "did not approach them" since it was the Marshal's responsibility to remove them. Consequently, plaintiff failed to establish by a preponderance of evidence that defendants were in possession of the Apartment after they relocated at the end of December 2017.

The court finds in favor of defendants.

Accordingly, it is hereby ORDERED that the complaint is dismissed; and it is further

ORDERED, that the Clerk shall enter judgment in favor of defendants Luis Estrella and Nurys Garcia accordingly.

This constitutes the decision, verdict and order of the court.