Is a Landlord Required to Serve a Notice Terminating Tenant's Tenancy Before Commencing Litigation ?
In Aponte v. Santiago, 165 Misc 2d 968, 630 N.Y.S.2d 869 (Civil Court, Bronx County 1995), then Civil Court Judge Lucindo Suarez stated as follows:
A further question which should be addressed is whether plaintiffs were required to serve a notice terminating defendant's tenancy prior to the commencement of this action.
At common law, a previous demand or notice to quit was unnecessary to commence an action to recover real property.
Since RPAPL article 6 did not modify this principle of the common law, service of a notice of termination is not required as a condition precedent to this action.
Consequently, a crucial distinction between the statutory summary proceeding previously commenced by plaintiffs and this action is the fact that a termination notice was not a jurisdictional predicate herein. Id. at 972.
On the other hand, in Gerolemou v. Soliz, 184 Misc 2d 581 (App Term, 2d Dept 2000), three judges of the Appellate Term, Second Department, stated as follows:
Even apart from Real Property Law 232-a, the common law requires the giving of a notice of termination to terminate a month-to-month tenancy, and neither a summary holdover proceeding nor an ejectment action will lie in the absence of the giving of such notice.
The ruling to the contrary in Aponte v. Santiago . . . should not be followed. Id. at 580.
In Gerolemou the landlord and tenant had an oral month-to-month tenancy.
The opinion makes no mention of any type of pre-commencement notice, official or unofficial, to the tenant.
Thus, for all that appears, the tenant had absolutely no notice that the landlord was declaring an end to the month-to-month tenancy (and therefore it had not actually ended) and no notice that the landlord was commencing litigation prior to the litigation itself.