Weiss v Straw

[*1] Weiss v Straw 2012 NY Slip Op 51452(U) Decided on July 25, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1051 Q C.

George B. Weiss, Appellant,

against

Sean Straw, Respondent, -and- ANN STRAW, "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ronni Dale Birnbaum, J.), entered June 19, 2009. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this nonprimary-residence holdover proceeding (see Rent Stabilization Code [RSC] [9 NYCRR] § 2524.4 [c]), the petition alleges that tenant was served with a notice of intention not to renew the lease on July 30, 2008 and the term for which the rent-stabilized apartment was rented expired on November 30, 2008. After a nonjury trial, the Civil Court dismissed the petition, finding that the predicate notice was premature.

It was undisputed at the trial that the last written lease signed by both parties had been a [*2]two-year renewal lease ending on November 30, 2007. It is landlord's position that he deemed the lease renewed for a one-year term ending on November 30, 2008. He testified that he had timely provided a renewal lease in July of 2007, but that tenant had not executed and returned it. Tenant testified that he had returned the renewal lease, and had chosen to renew for a two-year term. The Civil Court credited landlord's testimony that the lease had not been returned, noting that tenant had submitted the original renewal lease and a duplicate copy into evidence at the trial. The determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). On this record, we find no basis to disturb the Civil Court's finding that tenant had not returned the renewal lease.

While the Civil Court was of the opinion that it was permissible for landlord to
deem the lease renewed pursuant to RSC (9 NYCRR) § 2523.5 (c) (2), the court held that landlord was not permitted to deem the lease renewed for a one-year term, since the original lease and all prior renewals had been for two-year terms (see also 224 W. 10th St. Corp. v Gross, 13 Misc 3d 1207[A], 2006 NY Slip Op 51718[U] [Civ Ct, NY County 2006]). Accordingly, the Civil Court held, the term of the deemed lease renewal did not end until November 30, 2009, and the notice of intention not to renew the lease that was served on July 30, 2008 was premature. In Samson Mgt., LLC v Hubert (92 AD3d 932 [2012], affg 28 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2010]), the Appellate Division, Second Department, recently held that: "RSC § 2523.5 (c) (2) is invalid to the extent it impairs a right granted to tenants by Real Property Law § 232-c. The RSC provision purports to provide landlords of rent-stabilized units a remedy to deal with holdover tenants that is expressly precluded by Real Property Law § 232-c. Accordingly, the plaintiff cannot rely on RSC § 2523.5 (c) (2) and deem the prior lease renewed solely by virtue of the fact that the defendant remained in the apartment after the expiration of the lease" (Samson Mgt., LLC, 92 AD3d at 934).
In view of this holding, landlord was not within his rights in deeming the lease renewed. We note that no agreement implied in fact for a one-year renewal lease (see Samson Mgt., LLC, 28 Misc 3d at 32) can be found here, as no meeting of the minds was shown to support such a finding. Since no lease was in effect, the notice of intention not to renew the lease was improper. Accordingly, the petition was properly dismissed, albeit for a different reason than that relied upon by the Civil Court.

In view of the foregoing, the final judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012