Judith Hain, Plaintiff, against Jay Zwitzer, Defendant.

                                08 - SC - 10763

                       CITY COURT OF NEW YORK, ROCHESTER

               2008 NY Slip Op 52329U; 2008 N.Y. Misc. LEXIS 6694

                           November 20, 2008, Decided



COUNSEL: Lorenzo Napolitano, Esq. (counsel for the defendant).

JUDGES: Hon. Thomas Rainbow Morse, JCC.

OPINION BY: Thomas Rainbow Morse


   Thomas R. Morse, J.

   This court has taken testimony regarding plaintiff's claim for rent pursuant
to a written self-renewing residential lease agreement. The defendant lived in
the premises for the first year of the written lease then purchased a home and
vacated the property during the "automatic renewal" period in July, 2007. The
monthly rent was $ 675 and the lawsuit involves rent allegedly owed by the
defendant between the time he left and the point the property was re-rented in
April, 2008. For the reasons which follow, the court determines that the
plaintiff is entitled to a judgment for a portion of the amount requested.

   The document which purports to be a "lease" contains a heading bearing the
names and signatures of the parties. 1 The first sentence of the one paragraph
"lease" deals with occupancy and use of the premises which is not germane to
this lawsuit. 2 The rest of the paragraph contains the "automatic renewal"
provisions upon which the plaintiff relies as her basis for recovery. That
section provides that

        It is mutually understood and agreed the lease shall be renewed
     from term to term upon expiration of each term, without the necessity
     of a new lease unless either party on or before 60 days proceeding
     (sic) the termination of any term, shall give the other  written
     native (sic) of intention to terminate this agreement. The provision
     is intended to give the resident reasonable time to make satisfactory
     arrangements should the landlord elect to terminate, and to give the
     landlord reasonable time to lease the premises from the expiration

The plaintiff indicated before this court that she has used this "lease"
provision for years. She is not alone.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   Those
entries are followed by both handwritten and pre-printed provisions at the
beginning, not he end of the document. Based on the ruling in this case, it is
not necessary for the court to address the placement of the signatures other
than to say that the better, most common and perhaps only legally binding
location for signatures is at the end of the document signalling that the
parties agree to all of the foregoing.

   In addition, by a handwritten notation, the document notes that "Tenant
agrees to follow Westage at the Harbor rules..." Presumably, those rules contain
provisions outlining the reciprocal rights and responsibilities which normally
comprise a residential lease.
2   The pre-printed lease paragraph provides that: "[t]he tenant agrees she will
not use or occupy said premises for any purpose except as a dwelling, orin (sic)
any manner deemed extra hazardous on account of fire, nor use said premises in
an improper manner, and will not assign this lease or sublet said premise, or
any portion thereof, without the written consent of the landlord."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   Such provisions derive from English real property law and have been in
existence in our state since the time of the revolutionary war. 3 By 1915,
however, the Court of Appeals noted that while they are enforceable,
"[c]ovenants by a landlord for continual renewals are not favored for they tend
to create a perpetuity." 4 Two decades later, New York restricted the use of
such clauses in leases when it required the landlord to provide a tenant with
written notice of an imminent automatic renewal in order for such a provision to
be valid. 5 Under our law, [n]o provision of a lease of any real property or
premises which states that the term thereof shall be deemed renewed for a
specified additional period of time unless the tenant gives notice to the lessor
of his intention to quit the premises at the expiration of such term shall be
operative unless the lessor, at least fifteen days and not more than thirty days
previous to the time specified for the furnishing of such notice to him, shall
give to the tenant written notice, served personally or by registered or
certified mail, calling the attention of the tenant to the existence of such
provision in the lease. 6

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   Rutgers
v. Hunter, 6 Johns. Ch 215 (Chancery Court of New York, 1822)("An agreement to
make leases with covenant for perpetual renewal, each lease to contain the same
covenant forever, was a species of contract which Lord Thurlow thought ought not
to be executed. But Lord Eldon (16 Vesey, 84.) disagreed to that doctrine, on
the ground, that such contracts had been too long covered and sanctioned by
decisions. I do not mean to say, that such covenants are not valid; but I
contend, only, that they must be clearly and certainly made, and are not to be
deduced by construction from a covenant to "renew the lease," without saying

   . To avoid the rule against perpetuities (e.g. that property can't be
alienated for a period in excess of a life in being plus 21 years), such
automatic renewal clauses typically had to be exercised every twenty-one years).
4   Burns v. City of New York, 213 NY 516, 520 (1915).
5   McKinney's Real Property Law § 230 (L. 1936, ch. 702.). This section of that
statute has now been moved to the General Obligations Law.
6   McKinney's General Obligations Law § 5-905
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   In upholding the statutory predecessor of this provision, the Court of
Appeals noted that the law "was enacted solely for the protection of the
tenant." 7 Specifically, another court found that "the automatic renewal clause
in leases was indubitably a trap for the unwary or forgetful tenant." 8
Moreover, the Third Department has found that a landlord's failure to provide
the required written reminder precludes recovery from the original tenant even
when the tenant subsequently sub-let the premises. 9 Lastly, the Fourth
Department has held that "[c]ovenants for renewal are to be construed most
favorably to the lessee." 10

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7   J. H.
Holding Co. v. Wooten, 291 NY 427, 430 (1943). See also Boyd H. Wood Co. v.
Horgan, 291 NY 422 (1943).
8   Kuppers v. Tortora Agency, Inc. 63 Misc 2d 656, 658(N.Y.C. Civ.Ct., 1970).
9   Malone Associates v. Grand Union Co,. 249 AD2d 830(3rd Dept., 1998)
10   DeSantis v. Kessler, 83 AD2d 766, 767(4th Dept., 1981).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   In this case, it is uncontested that the landlord failed to provide the
tenant with a written reminder of the lease's automatic renewal. Such inaction
renders the automatic renewal clause in this case unenforceable as against the
public policy of this state.

   While the discussions between the landlord and tenant in the late spring and
early summer of 2007 gave the landlord ample notice that the tenant would be
vacating the premises at the end of July, common courtesy would dictate that, at
the very least, he do something more than disappear leaving the keys on the
kitchen counter.

   Since the apartment was left undamaged the defendant would ordinarily be
entitled to return of his security deposit, but before this court he indicated
it could be applied to any rent this court might determine was due and owing.
Because the defendant/tenant did not return the phone calls placed by the
plaintiff/landlord and she did not have final proof that he vacated the premises
until she entered it in early August, the court finds that the plaintiff is
entitled to keep the security deposit as rent for that month.

   Consistent with the court's responsibility "to do substantial justice between
the parties according to the rules of substantive law," 11 consonant with its
authority to "condition the entry of such judgment upon such terms as the court
shall deem proper," 12 and after due deliberation and careful consideration it
is hereby

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11   Uniform
City Court Act § 1804. In large part, proceedings in small claims "shall not be
bound by statutory provisions or rules of practice, procedure, pleading or
evidence." Id. Importantly, while Supreme Court rules may apply in small claims
"so far as the same can be made applicable and are not in conflict with the
provisions of [the UCCA]; in case of conflict, the Provisions of [the UCCA]
shall control." UCCA § 1804. See Williams v. Roper, 269 AD2d 125 (1st Dept.,
2000) app. dism. 95 NY2d 898 (2000); see also Cruz v. Beechwood RB LLC., 11 Misc
3d 126(A) (N.Y.Sup.App.Term, 2006).
12   Uniform City Court Act § 1805(a).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

   HELD that the defendant owes the plaintiff rent for the month of August,
2007. And it is further

   HELD that having failed to provide notice pursuant to General Obligations Law
§5-905, the plaintiff is not entitled to any rent from the defendant for the
period after September 1, 2007. And it is therefore

   ORDERED that the $ 675 security deposit held by the plaintiff may, with
consent of the defendant, be applied towards the August, 2007 rent. And it is

   ORDERED that since the plaintiff is not entitled to any money other than that
which she  has already been given, this action is dismissed.

   The foregoing constitutes the decision and order of the court.

   Dated: November 20, 2008

   Rochester, New York

   Hon. Thomas Rainbow Morse, JCC