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Supreme Court, Appellate Term, Second Department, February 23, 2010
APPEARANCES OF COUNSEL
Elena Sassower, appellant pro se. Leonard A. Sclafani, P.C., New York City, for respondent.
{**27 Misc 3d at 46} OPINION OF THE COURT
Memorandum.
Ordered that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further, ordered that tenant's appeal from so much of the order entered October 11, 2007 as consolidated the instant proceeding with "any prior pending action" is dismissed as moot; and it is further, ordered that the order entered October 11, 2007, insofar as appealed from by tenant and insofar as reviewed, is affirmed without costs and, upon searching the record, landlord is granted summary judgment awarding him a final judgment of possession; and it is further, ordered that the order entered October 11, 2007, insofar as cross-appealed from by landlord, is reversed without costs and landlord's motion to dismiss tenant's affirmative defenses and counterclaims is granted; and it is further, ordered that the order entered January 30, 2008, insofar as appealed from and reviewed, is reversed without costs and all the provisions thereof, except the provision in which the court recused itself, are vacated.
Landlord was, at all times relevant to this holdover proceeding, the proprietary lessee of, and the owner of shares allocated and appurtenant to, the cooperative apartment that is the subject of this proceeding. In 1987, landlord entered into a contract to sell his shares and his interest in the subject apartment{**27 Misc 3d at 47} to tenant and her mother. Paragraph 6 of the contract of sale states, "This sale is subject to the approval of the directors or shareholders of the Corporation as provided in the Lease or the corporate by-laws." At the same time, landlord, tenant and tenant's mother entered into an occupancy agreement incident to the contract of sale. Tenant took possession of the subject apartment pursuant to that occupancy agreement. The cooperative corporation subsequently declined to approve the sale to tenant and her mother, following which landlord, in 1989, commenced a holdover summary proceeding to recover possession of the premises, and tenant and her mother commenced an ultimately unsuccessful federal action against, amongst others, the cooperative corporation. The federal litigation ended in 1993. Tenant paid landlord the sum of $1,000 every month until 2001, when, pursuant to landlord's demands, she began paying increased monthly amounts. The 1989 summary proceeding remained dormant from 1993 until this proceeding was commenced in 2007. Tenant's mother never resided in the apartment.
In the instant proceeding, landlord alleges that tenant entered into possession of the subject apartment pursuant to an occupancy agreement incident to a contract of sale, that upon termination of the occupancy agreement she became a month-to-month tenant pursuant to an oral agreement, that her term expired on May 31, 2007 and that she was given more than 30 days' notice of the termination of her tenancy. Landlord attached to the petition a copy of the termination notice and proof of its service. Tenant's answer denies the existence of a landlord-tenant relationship, raises the possibility that the apartment is subject to rent regulation, and asserts 10 affirmative defenses and four counterclaims. The answer does not challenge service of the termination notice, and, in a letter attached to the answer, tenant admitted receipt of the notice.
Insofar as is relevant to the issues raised on appeal, landlord moved to dismiss all of tenant's affirmative defenses and counterclaims. Tenant cross-moved for dismissal of the petition pursuant to CPLR 3211 (a), summary judgment dismissing the petition, referral to the Division of Housing and Community Renewal (DHCR) for a determination as to the rent-control status of the subject apartment, costs and sanctions, and the referral of landlord's attorney [*2]to the Grievance Committee. By order entered October 11, 2007, the City Court denied both parties their requested relief and consolidated the instant proceeding{**27 Misc 3d at 48} with "any prior pending action." Both parties have appealed from that order.
The outcome of this proceeding is dependent upon the relationship between the parties with respect to the subject apartment. While the parties agree that tenant entered into possession pursuant to the occupancy agreement, we find that tenant's right to possession pursuant to said agreement terminated long before the instant proceeding was commenced in 2007. The contract of sale was unambiguous as to the effect of the cooperative corporation's refusal to approve the sale: the contract would be cancelled. The stated purpose of the occupancy agreement was to accommodate the parties prior to closing. The occupancy agreement set forth specific circumstances under which tenant could maintain possession of the premises, none of which apply to the facts of this case. Accordingly, we find that tenant's right to possession pursuant to the occupancy agreement terminated, at the latest, when the federal litigation regarding the cooperative corporation's refusal to approve the sale had been resolved in the cooperative corporation's favor. In addition, we find that once tenant's right to possession under the occupancy agreement terminated and landlord continued to accept regular monthly payments in exchange for tenant's exclusive possession of the apartment (cf. Matter of Smith v Donovan, 61 AD3d 505 [2009]), a month-to-month tenancy was created (cf. Weiden v 926 Park Ave. Corp., 154 AD2d 308 [1989]; Walker v Espinal, 4 Misc 3d 136[A], 2004 NY Slip Op 50832[U] [App Term, 1st Dept 2004]). This is particularly so here, where the amounts of the monthly payments were increased from time to time pursuant to implicit or express agreements. We note that tenant does not claim that because these monthly payments were made during the purported pendency of the 1989 proceeding they must be deemed to be use and occupancy (cf. RPAPL 711 [1]), nor, under the unusual circumstances presented here, including the 14 years which elapsed following the termination of the federal litigation during which there was no activity in the 1989 proceeding, can these payments be so deemed (see McFadden v Sassower, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U] [appeal No. 2008-1427 W C 2010] [decided herewith]). We further find that landlord timely served a notice to terminate the month-to-month tenancy, receipt of which notice was admitted (see Real Property Law

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