Town of Islip v. Kismet Park Corp.

APPELLATE TERM
SECOND DEPARTMENT
Landlord/Tenant Law

New York Law Journal

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Presiding Justice Denise Molia

Landlord sued for possession. The District Court dismissed finding that an implied year-to-year tenancy was created after the expiration of the lease in Dec. 31, 2005, and landlord failed to provide tenant with six months' notice of termination. The divided panel affirmed the district court's decision, finding it was tenant's custom to pay the annual rent in a lump sum payment in the following year, that landlord accepted. It stated, contrary to landlord's contention, the evidence established that after the written lease expired, an implied year-to-year tenancy was created between the parties, thus landlord was required to provide tenant with six months' notice of an intent to terminate the tenancy on the annual expiration of the lease. The panel stated the parties' course of conduct indicated the year-to-year tenancy continued through 2009. The dissent voted to reverse the final judgment and remit the matter for entry in landlord's favor, ruling there was no express agreement regarding the tenancy to be created after tenant held over after expiration of the lease in 2005. Thus, it noted the tenancy reverted to a month-to-month tenancy terminable upon 30 days' notice, which was given.

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