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Itkowitz PLLC Wins in First Department on Tenancy-at-Will Case


October 20, 2019

In this case we represented a single-family townhouse owner in a tony part of town. The owner’s adult child had moved into the townhouse with him. The owner/father wanted the occupant/child out. The child could well afford to re-locate somewhere else, she just did not want to go. There was no lease and the daughter never paid rent.

I determined that the occupant was a Tenant-at-Will, entitled to notice to terminate said tenancy as per Real Property Law 228.

Generally, a tenancy-at-will arises whenever a landlord permits another party to possess property without any agreement as to a termination date or rent payment terms. See, e.g., Harris v. Frink, 49 N.Y. 24, (1872); Stiles v. Donovan, 100 Misc. 2d 1048 (N.Y. City Civ. Ct. 1979) (tenancy-at-will created when employee remained in possession after employment relationship ended). A tenancy-at-will is created when a tenant enters into possession by permission of the landlord for an indefinite term. For example, a lease “for the duration of the war and one year after the signing of an armistice” was deemed to be indefinite in duration, thereby creating a tenancy-at-will terminable by a thirty-day notice. Michael Tuck Foundation v. Hazelcorn, 187 Misc. 954 (Mun. Ct. 1946), order aff’d, 188 Misc. 1046 (App. Term 1947).

Real Property Law § 228 requires a landlord to serve a written thirty-day notice of termination upon tenants-at-will before the landlord may maintain a proceeding to recover possession. See, e.g., Russo v. Bendjak, N.Y.L.J., 10/17/90, p. 31, col. 4 (City Ct., White Plains); Lippe v. Professional Surgical Supply Co., Inc., 132 Misc. 2d 293 (N.Y. City Civ. Ct. 1986) (landlord’s failure to serve thirty-day termination notice was fatal to holdover proceeding commenced by landlord against subtenant).

The occupant-daughter, however, hired a large law firm, who said the occupant-daughter was in the subject premises pursuant to “an agreement for the occupation of real estate in the city of New York, which [did] not particularly specify the duration of the occupation” (RPL § 232), and, as such, the agreement “shall be deemed to continue until the first day of October next after the possession commences under the agreement.” The daughter claimed that her interest in real property had been fatally mischaracterized by my RPL § 228 notice. The occupant-daughter brought an action against the owner-father in Supreme Court seeking a declaratory judgment, hoping to gum up the works and slow us down from initiating a summary holdover proceeding in Civil Court.

The daughter’s move backfired when the Supreme Court Justice very quickly recognized that, notwithstanding the fact that the October after the agreement to let the daughter live in the house had long since come and gone, the daughter was, of course a Tenant-at-Will who had been properly terminated pursuant to Real Property Law § 228. The Justice granted summary judgment, and the case actually moved along more swiftly than had we been in Housing Court.  

By the way, the decision was upheld on appeal at the First Department. See Donnelly v. Neumann, 170 A.D.3d 597 (1st Dept 2019).

Respectfully submitted,



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