After the decision, MLR and Brown attempted to negotiate a new lease but failed to reach an accord. Instead, Brown was kept on as a month to month tenant with the same terms and rent as the previous lease. The tenancy continued in this state until July 31, 2018, when MLR served Brown with a notice of termination of the month to month tenancy. The notice provided that MLR was terminating the tenancy and that Brown was required to vacate and surrender the possession of the premises by August 31, 2018. Brown did not vacate his apartment at the end of August; instead, he offered September's rent. MLR refused to accept this rent and countered by commencing a holdover proceeding. A trial was held in Albany City Court on September 28, 2018.
[1] At trial both parties moved for judgment as a matter of law. First, Brown asked to have the petition dismissed because MLR lacked a residential occupancy permit (ROP) from the City of Albany. Multiple Dwelling Law § 302 (1) (b) provides that a landlord shall not recover rent for the period where the apartment lacked a certificate of occupancy. However, Multiple Dwelling Law § 302 applies to cities with a threshold population exceeding 325,000. The City [*3]of Albany is under that population threshold. Nevertheless, "[t]he legislative body of any . . . city [under a population of 325,000] . . . may adopt the provisions of . . . [Multiple Dwelling Law § 302 (1) (b)] and make the same applicable to dwellings within the limits of such city" (Multiple Dwelling Law § 3 [2]).