MMB Apts., LLC v Guerra

[*1] MMB Apts., LLC v Guerra 2014 NY Slip Op 51662(U) Decided on November 6, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-855 K C

MMB Apartments, LLC Doing Business as MMB 425 REALTY, Appellant,

against

Laura Guerra, Respondent, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kimberly Slade Moser, J.), entered December 10, 2012. The order granted tenant's motion for summary judgment dismissing the petition in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, and tenant's motion for summary judgment dismissing the petition is denied.

Landlord commenced this holdover proceeding alleging that, under this court's decision in Paikoff v Harris (185 Misc 2d 372 [App Term, 2d & 11th Jud Dists 1999]), tenant is a "non-purchasing tenant" protected from eviction under the Martin Act (General Business Law § 352-eeee); that landlord had offered tenant a renewal lease at a monthly rent of $1,350; that tenant had refused to sign the lease and had remained in possession as a month-to-month tenant; and that landlord had terminated tenant's month-to-month tenancy. After answering, tenant moved for summary judgment dismissing the petition, arguing that a failure to sign a renewal lease is not a ground for eviction enumerated in the Martin Act (General Business Law § 352-eeee [2] [c] [1]). In opposition to the motion, landlord argued that tenant was not a "non-purchasing tenant" within the meaning of the Martin Act because she had rented the apartment seven years after the transfer of title to the co-operative corporation; that, in any event, the offered monthly rent of $1,350 was the fair market rent and was an increase of only $50 over tenant's previous rent; and, citing Paikoff, that a failure to sign a proper renewal lease is a ground for eviction under the Martin Act. By order dated December 10, 2012, the Civil Court granted tenant's motion.

For the reasons stated by this court in Geiser v Maran (189 Misc 2d 442 [App Term, 2d & 11th Jud Dists 2001]) and Paikoff v Harris (185 Misc 2d 372), we reject landlord's contention that tenant is not a "non-purchasing tenant" protected under the Martin Act. However, we agree with landlord that a tenant's failure or refusal to sign a renewal lease constitutes a ground for eviction under the Martin Act because it constitutes a "breach by the non-purchasing tenant of his [*2]obligations to the owner of the dwelling unit or the shares allocated thereto" (General Business Law § 352-eeee [2] [c] [ii]; see Paikoff, 185 Misc 2d 372). In view of the foregoing, and as tenant did not demonstrate as a matter of law that the proposed renewal rent was unconscionable, she was not entitled to summary judgment dismissing the petition.

We note that, should it be found that tenant breached her obligation to sign a proper renewal lease with a renewal rent that is not unconscionable, she would be entitled to a 10-day post-judgment period in which to cure the breach (RPAPL 753 [4]; see Fairbanks Gardens Co. v Ghandi, 168 Misc 2d 128 [App Term, 2d & 11th Jud Dists 1996], affd for reasons stated below 244 AD2d 315 [1997]; Barmat Realty Co., LLC v Quow, 39 Misc 3d 151[A], 2013 NY Slip Op 50977[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is reversed and tenant's motion for summary judgment dismissing the petition is denied.

Pesce, P.J., and Aliotta, J., concur.

Elliot, J., concurs in a separate memorandum.

Elliot, J., concurs in the following memorandum:

While I agree that reversal, in any event, is required under the facts of this case, I believe that, for the reasons set forth by the dissent in Arkansas Leasing Co. v Gabriel (3 Misc 3d 46 [App Term, 2d & 11th Jud Dists 2004]), a re-examination of Paikoff v

Harris (185 Misc 2d 372 [App Term, 2d & 11th Jud Dists 1999]) is warranted (see Park W. Vil. Assoc. v Chiyoko Nishoika, 187 Misc 2d 243 [App Term, 1st Dept 2000]).
Decision Date: November 06, 2014