Union Senior Plaza v. Mavins, Landlord-tenant Court, Nassau County District Court Index No. 001236/2013.

As every L&T practitioner knows, landlord-tenant cases come in two varieties: non-payments and holdovers.  A frequently presented issue is what to do with a tenant that is chronically delinquent with the rent.  That is, when should the landlord stop filing non-payment cases and instead seek to terminate the lease based upon chronic late payments  (or, if the lease so provides, a breach of a conditional limitation) and file a holdover proceeding?

In Union Senior Plaza, the landlord chose to file a holdover proceeding.  The court held that the tenant’s failure to make rent payments from September 2012 through January 2013, was insufficient to meet the standard for a holdover proceeding.  The court wrote that it was the landlord’s burden to establish that it was required to commence “frequent nonpayment proceedings in a short period of time.”  Accordingly, the court dismissed the holdover proceeding without prejudice.

The lesson of Union Senior Plaza is that before a landlord moves from a non-payment to a holdover it should build a record of either frequent non-payment proceedings filed in a relatively short period of time or a clear violation of the conditional limitation in the lease.