North Shore Community Servs., Inc. v Community Dr. LLC (2014 NY Slip Op 06380)
North Shore Community Servs., Inc. v Community Dr. LLC
2014 NY Slip Op 06380
Decided on September 25, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 25, 2014Sweeny, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.


13042N 650335/13

[*1] North Shore Community Services, Inc., Plaintiff-Appellant,
vCommunity Drive LLC, Defendant-Respondent.
Lambert & Shackman, PLLC, New York (Thomas C. Lambert of counsel), for appellant.
Somer, Heller & Corwin, LLP, Commack (Stanley J. Somer of counsel), for respondent.
Order, Supreme Court, New York County (Cynthia Kern, J.), entered December 23, 2013, as amended February 19, 2014, which granted defendant's motion for summary judgment on its counterclaims for use and occupancy and attorney's fees, unanimously affirmed, with costs.
Plaintiff's argument that defendant's acceptance of its tender of rent for the month following the expiration of the lease agreement created a new month-to-month tenancy under Real Property Law § 232-c is refuted by the unambiguous terms of the lease (see Matter of Wallace v 600 Partners Co., 86 NY2d 543 [1995]; 101123 LLC v Solis Realty LLC, 23 AD3d 107 [1st Dept 2005]). Real Property Law § 232-c provides that if the landlord accepts rent for any period subsequent to the expiration of the lease term, the tenancy thereby created will be from month to month, "unless an agreement either express or implied is made providing otherwise." Article 61 of the parties' lease is such an agreement. It provides that, upon plaintiff's default of its obligation to surrender the premises at the end of the lease term, plaintiff's continued occupation of the premises, with or without defendant's consent or acquiescence, will be treated as a tenancy at will and "in no event" a tenancy from month to month.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 25, 2014
CLERK


