Introduction

This decision resolves a recurring and consequential question in New York landlord-tenant law after the 2019 Housing Stability and Tenant Protection Act (HSTPA): when a landlord seeks to end a residential month-to-month tenancy through an ejectment action in Supreme Court (RPAPL article 6), must the landlord comply with the statutory notice scheme of Real Property Law (RPL) § 232-a and § 226-c (30/60/90-day nonrenewal notices), or does the common law’s longer six-month notice requirement govern?

In Olympic Galleria v. Sitt, the parties agreed that, after the written lease expired, their relationship devolved to a month-to-month tenancy. After the tenant stopped paying rent, the landlord served a 90-day notice referencing RPL § 232-a and commenced a Supreme Court action for breach of contract (rent arrears), use and occupancy, ejectment, and attorneys’ fees when the tenant remained in possession. The tenant countered that, because the landlord elected to proceed in ejectment rather than the summary holdover route, the statutory notice provisions do not apply, and the common law’s six-month notice to terminate governs.

The First Department adopts a strict textual approach and holds that RPL § 232-a’s notice regime (which incorporates RPL § 226-c(2) for 30/60/90-day timing) applies to “summary proceedings” only. Ejectment actions—creatures of the common law and governed by RPAPL article 6—are not covered unless the Legislature says so explicitly. Consequently, the landlord’s 90-day notice was insufficient to terminate the tenancy for purposes of ejectment, requiring dismissal of the ejectment claim. Because the tenancy thus continued, the court also dismisses the use-and-occupancy claim and limits the plaintiff to rent arrears on its contract claim (with no prejudgment interest under the circumstances). The court takes judicial notice of a subsequent Supreme Court order that granted entitlement to attorneys’ fees, leaving the amount to be determined at a hearing.

Summary of the Opinion

• Core holding on notice: RPL § 232-a incorporates RPL § 226-c(2) solely to set termination notice periods for initiating “summary proceedings.” It does not govern ejectment actions. Absent an explicit statutory modification, common-law termination notice applies to ejectment. Here, the parties did not dispute that the common-law notice required was six months. The landlord’s 90-day notice was therefore inadequate for ejectment, compelling dismissal of that cause of action.
• Effect on use and occupancy: Because dismissing the ejectment claim means the tenancy continues, the landlord is entitled to rent arrears (breach of contract damages), not use and occupancy. The use-and-occupancy claim is dismissed.
• Rent arrears calculation: The record permitted calculation of arrears without a hearing; the matter is remanded for Supreme Court to compute damages on the breach of contract claim (but the appellate court declines to award the landlord’s requested sum through April 30, 2025, as that figure relied on material outside the record on appeal).
• No prejudgment interest: Prejudgment interest is denied because the landlord rejected the tenant’s rent payments and did not obtain a court order to collect rents without prejudice.
• Attorneys’ fees: The landlord’s entitlement to fees was granted by a subsequent Supreme Court order; the cross-appeal on entitlement is therefore moot. The amount of fees is to be determined at a hearing.
• Judicial estoppel rejected: The tenant’s prior position in a separate summary proceeding regarding a 90-day notice does not estop him from asserting the six-month notice requirement in this ejectment action because the statutory scheme for summary proceedings does not control ejectment.

Analysis

A. Statutory Framework and Core Holding

RPL § 232-a is the New York City provision addressing the notice prerequisite to removing a month-to-month tenant by “summary proceedings.” After HSTPA, § 232-a incorporated § 226-c(2)’s 30/60/90-day tiers keyed to length of occupancy or lease term. Lower courts sometimes extrapolated from § 226-c’s broad preface (“Whenever a landlord … does not intend to renew the tenancy …”) to require those same notices in actions outside the summary proceeding context.

The First Department rejects that extrapolation. It emphasizes that § 232-a expressly incorporates only § 226-c(2), and only “for the purpose of defining the notice … prior to commencing a special [summary] proceeding.” The statute does not mention ejectment actions under RPAPL article 6, nor does any RPAPL article 6 provision prescribe a statutory notice period. Under settled canons of statutory interpretation, the court will not add words the Legislature omitted or broaden a clear, unambiguous statute. The common law fills the gap: unless a statute explicitly modifies common-law rules for ejectment, those rules remain intact. Here, the common law requires six months’ notice to terminate the month-to-month tenancy for purposes of ejectment, and the landlord’s 90-day notice was deficient.

B. Precedents Cited and How They Shaped the Decision

• Kaycee Props., LLC v. Colon, 2023 NY Slip Op 30951(U) (Sup Ct, Monroe County 2023) and 1641 Park Ave. Assoc. v. Parker, 2022 NY Slip Op 30519(U) (Sup Ct, NY County 2022): Lower court decisions that read RPL § 226-c’s broad opening paragraph to apply beyond summary proceedings. The First Department distinguishes these, stressing that § 232-a incorporates only § 226-c(2) and only as to summary proceedings.
• Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 NY2d 382, 394 (1995): “What is omitted was intended to be omitted” and courts cannot insert words into a statute. This supports the court’s refusal to graft § 226-c’s general scope onto § 232-a for ejectment.
• People v. Pagan, 19 NY3d 368, 370 (2012): Clear statutes must be enforced as written; courts may not resort to interpretive “contrivances” to extend them. The court adopts this textualist approach to confine § 232-a to summary proceedings.
• Alleyne v. Townsley, 110 AD2d 674, 675 (2d Dept 1985): “Common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute.” This anchors the return to common-law notice requirements for ejectment.
• Gerolemou v. Soliz, 184 Misc 2d 579, 580 (App Term, 2d Dept 2000): Dismissal warranted where landlord failed to provide adequate common-law notice to terminate prior to ejectment. The First Department echoes that outcome.
• ALP, Inc. v. Moskowitz, 204 AD3d 454, 457 (1st Dept 2022); Matter of Edward D. Jones & Co. v. American Stock Exch., LLC, 22 AD3d 319, 320 (1st Dept 2005): Judicial estoppel applies when a party’s position is “directly contrary” to one successfully urged in prior litigation. The court finds the tenant’s prior 90-day-notice position in a summary proceeding not inconsistent with asserting six-month notice in an ejectment action because different statutory regimes apply.
• Core Servs. Group, Inc. v. Teams Hous. Dev. Corp. Fund, Inc., 2016 NY Slip Op 31634(U), *22 (Sup Ct, NY County 2016): Use-and-occupancy is not available when a tenancy continues; rent arrears are the proper remedy. This supports dismissal of the use-and-occupancy claim after ejectment fails.
• Matter of Casanas, 216 AD3d 569, 570 (1st Dept 2023): Appellate review is confined to the record; the court will not make findings based on matters outside the record. Applied here to reject the landlord’s request for a specific arrears figure through April 30, 2025.
• W. 54-7, LLC v. Farber, 62 AD3d 485, 485 (1st Dept 2009): Denial of prejudgment interest where landlord rejected rent and did not seek a court order to collect rent without prejudice. The same principle defeats prejudgment interest here.
• Hearst Corp. v. Clyne, 50 NY2d 707, 714–715 (1980); Herman v. Herman, 121 AD3d 565, 565 (1st Dept 2014): Appellate issues rendered moot by subsequent orders. The court uses these to dismiss the cross-appeal on entitlement to attorneys’ fees as moot in light of a later order awarding entitlement.

C. The Court’s Legal Reasoning

• Textual limits of § 232-a and § 226-c: The court reads § 232-a to condition the availability of “summary proceedings” on providing the 30/60/90-day notice periods set by § 226-c(2). It does not read § 232-a to redefine termination notice universally across all removal actions. Applying expressio unius (Jorling) and textualist principles (Pagan), the court declines to extend the statute to ejectment.
• Ejectment’s common-law baseline: Absent a statute regulating termination notice in ejectment, common-law rules govern (Alleyne). Here, the parties agreed that the applicable common-law notice horizon was six months, so a 90-day notice failed to terminate the tenancy for purposes of ejectment.
• Consequences of inadequate notice: Because the notice did not terminate the tenancy, the ejectment claim cannot lie (Gerolemou). Without termination, the tenancy persists, precluding use and occupancy and limiting recovery to contract rent.
• Judicial estoppel rejected: The tenant’s earlier assertion of a 90-day notice entitlement in a separate summary proceeding does not bar reliance on the six-month rule in ejectment, because the legal frameworks differ and the positions are not “directly contrary” (ALP; Edward D. Jones).
• Damages and interest: The record sufficed to compute arrears without a hearing because the landlord’s affidavit established the sums and the tenant failed to raise a triable dispute—indeed, he admitted key amounts and acknowledged the landlord rejected his January 2023 rent. However, prejudgment interest is not available because the landlord rejected rent and did not obtain a rent-collection order (W. 54-7, LLC).
• Attorneys’ fees: The appellate court takes judicial notice of a post-appeal Supreme Court order granting the landlord summary judgment on entitlement to fees, rendering the appellate issue moot (Hearst; Herman). The amount remains for a hearing.

D. Impact and Practical Implications

This decision provides clear, department-level guidance on a question unsettled in some trial courts post-HSTPA. Its practical consequences are significant:

• Forum selection matters: Landlords seeking to end a residential month-to-month tenancy face very different notice regimes depending on whether they proceed by summary holdover (RPAPL art. 7) or ejectment (RPAPL art. 6). Summary holdovers require the 30/60/90-day RPL § 226-c(2) notices. Ejectment requires common-law termination notice, which here the parties agreed was six months.
• Discouraging ejectment end-runs: Some landlords used ejectment actions in Supreme Court to sidestep Housing Court timelines or perceived defenses. This opinion removes any advantage on notice: ejectment now demands a longer notice period than a summary proceeding, and failure to meet that requirement is dispositive.
• Use and occupancy narrowed: Where ejectment fails and the tenancy continues, landlords cannot seek use and occupancy; they must plead and prove rent arrears on contract. This affects the measure of recovery and potential defenses.
• Interest strategy: Rejecting rent can jeopardize prejudgment interest on arrears. Landlords who want to preserve interest should consider accepting rent without prejudice or seeking appropriate court orders allowing interim rent collection.
• Litigation efficiency: Where arrears are undisputed or insufficiently controverted, courts may calculate damages without a hearing. Parties should submit clear affidavits and records to create or eliminate triable issues.
• Attorneys’ fees: Even after lease expiration, fees provisions may survive into holdover/MTM periods; entitlement can be adjudicated on summary judgment, with the amount set at a hearing.
• Statewide resonance: Although a First Department case, the court’s statutory analysis—limiting § 232-a’s incorporation of § 226-c(2) to summary proceedings and preserving common-law ejectment principles absent explicit statutory modification—will be persuasive in other departments. Comparable provisions (e.g., RPL § 232-b, outside NYC) feature similar “summary proceeding” language, suggesting the same reasoning could extend beyond NYC unless and until other departments hold otherwise or the Legislature amends the statutes.
• Legislative signal: If the Legislature intends § 226-c’s nonrenewal notice to govern all removal pathways, not merely summary proceedings, it will need to say so expressly. This opinion invites such clarification.

Complex Concepts Simplified

• Month-to-month tenancy: A periodic tenancy without a fixed end date that renews each month. It can arise when a lease expires and the tenant remains while the landlord accepts rent.
• Summary proceeding vs. ejectment:
  • Summary proceeding (RPAPL article 7) is a specialized, expedited Housing Court process to recover possession or rent. RPL § 232-a and § 226-c(2) govern pre-termination notices in this context.
  • Ejectment (RPAPL article 6) is a plenary Supreme Court action to recover possession based on superior title and right to possession. Absent an explicit statute, common-law rules, including termination notice, apply.
• RPL § 232-a and § 226-c(2): Post-HSTPA, § 232-a incorporates § 226-c(2)’s 30/60/90-day notice tiers, but the First Department holds that incorporation is limited to the context of “summary proceedings” to remove the tenant. It does not displace common-law notice rules for ejectment.
• Common-law notice (six months): At common law, termination of certain periodic tenancies requires six months’ notice. In this case, the parties agreed that six months governed their month-to-month tenancy for ejectment purposes, and the court proceeded on that premise.
• Use and occupancy vs. rent: “Use and occupancy” is an equitable or quasi-contract recovery for the reasonable value of occupancy when no tenancy (or no agreed rent) exists. If the tenancy continues, the proper remedy is “rent” under contract, not use and occupancy.
• Prejudgment interest: Money awarded for the time value of money between when a claim accrued and judgment. Courts may deny interest on rent arrears where the landlord rejected rent and did not obtain an order permitting collection, to prevent landlords from profiting from their own refusal to accept payment.
• Judicial estoppel: Prevents a party from taking a position in litigation directly contrary to one successfully asserted in prior litigation. It applies only when the positions are truly inconsistent in law and fact. Here, the tenant’s 90-day-notice argument in a summary proceeding did not estop relying on a six-month notice in an ejectment action, because the legal frameworks differ.
• Record on appeal: The appellate court decides based on the record that was before the trial court; it will not make findings or award sums that require facts outside that record.

Procedural Disposition

• Supreme Court had granted plaintiff summary judgment on liability for breach, use and occupancy, and ejectment, and denied defendant summary judgment on use and occupancy and ejectment.
• The First Department modified:
  • Ejectment: Plaintiff’s summary judgment denied; defendant’s summary judgment granted dismissing ejectment (inadequate notice).
  • Use and occupancy: Plaintiff’s summary judgment denied; defendant’s summary judgment granted dismissing use and occupancy (tenancy continues).
  • Breach of contract (rent arrears): Liability stands; remand to calculate damages without a hearing, on the existing record.
  • Prejudgment interest: Properly denied.
  • Attorneys’ fees: Appeal on entitlement dismissed as moot due to a subsequent order granting entitlement; remand for a hearing on amount.
• All other aspects affirmed; no costs.

Key Takeaways and Practice Pointers

• Choose your forum with notice in mind: If the landlord plans an ejectment action, serve a six-month common-law termination notice (unless and until a statute expressly alters that rule). If speed is paramount, consider a summary holdover with RPL § 226-c(2)’s 30/60/90-day notice.
• Draft notices precisely: A notice that suffices for a summary proceeding may be inadequate for ejectment. Tailor the notice to the planned procedural path.
• Don’t assume “global” reach of § 226-c: § 226-c’s broad preface does not, in this Department, override ejectment’s common-law rules. § 232-a’s incorporation is limited to summary proceedings.
• Mind the remedy alignment: If the tenancy continues, plead rent arrears, not use and occupancy. Conversely, after a valid termination, use and occupancy may become the appropriate measure.
• Preserve interest intelligently: To avoid losing prejudgment interest, avoid rejecting rent without securing a court order permitting interim collection. Consider accepting rent “without prejudice” where lawful.
• Build a clean arrears record: Affidavits based on business records, coupled with tenant admissions, can enable summary calculation of arrears and obviate a hearing.
• Estoppel is context-specific: Positions taken in summary proceedings do not automatically estop different positions in ejectment where the governing law diverges.
• Watch for legislative developments: If the Legislature intends uniform notice across all removal proceedings, it may amend § 232-a (and § 232-b) or RPAPL article 6 to say so expressly.

Conclusion

Olympic Galleria, Co., Inc. v. Sitt is a major First Department clarification that reaffirms the limited scope of RPL § 232-a and § 226-c’s notice scheme and preserves the common-law foundation of ejectment. By holding that the 30/60/90-day statutory termination notices govern summary proceedings only—and that ejectment requires six months’ common-law notice unless a statute says otherwise—the court brings doctrinal coherence to a field where trial courts diverged post-HSTPA. The decision also neatly aligns remedies with status: if termination fails, the tenancy endures; use and occupancy drops out, and rent arrears remain, typically without prejudgment interest if the landlord rejected rent absent a court collection order.

Beyond resolving this case, the opinion will reshape litigation strategies for landlords and tenants alike, emphasizing careful forum selection, precise notice practice, and disciplined record-building on arrears. It provides a textualist template for reading landlord-tenant statutes in harmony with common-law ejectment principles, while signaling that any broader harmonization across forums must come from the Legislature. In short: in ejectment, give six months’ notice—or risk losing possession claims and associated remedies.