224 W. 10th St. Corp. v Gross

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[*1] 224 W. 10th St. Corp. v Gross 2006 NY Slip Op 51722(U) [13 Misc 3d 1207(A)] Decided on May 5, 2006 Civil Court Of The City Of New York, New York County Jackman-Brown, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2006
Civil Court of the City of New York, New York County

224 West 10th Street Corp., Petitioner,

against

Karen Gross, Respondent, "JOHN and/or JANE DOE," Undertenants.



L&T 104272/05



Attorney for Petitioner:Attorney for Respondent:

BY: Gregory G. Calabro, Esq. &BY: Steven A. Weissman, Esq. Jennifer D'Ambrosio, Esq.9 East 40th Street, 11th Floor

1412 Broadway, Suite 1500New York, New York 10016

New York, New York 10018212-725-6100

646-688-6095

Pam B. Jackman-Brown, J.

Petitioner commenced this summary holdover proceeding to recover the rent stabilized apartment #16, located at 224 East 10th Street, New York, New York. It is Petitioner's contention that Respondent does not occupy the subject apartment as her primary residence.Based on this premise, Petitioner moves for an order granting it leave to conduct discovery and directing Respondent Karen Gross ("Respondent") to pay all past due use and occupancy' and future use and occupancy' as it becomes due and owing.

Respondent cross-moves for an order dismissing the within proceeding or, in the alternative, for a traverse hearing and a hearing to determine whether Petitioner even offered Respondent a renewal lease. [*2]

The Court will first address the cross-motion to dismiss.

Respondent first moved into the subject apartment on or about October 1989 to live with her brother. Thereafter, she was offered renewal leases, which she executed each time for two year terms. The last renewal least she received was dated August 31, 1999, for a two-year term beginning January 1, 2000, and expiring December 31, 2001. Respondent claims no other renewal leases were offered. She, therefore, continued to make rental payments through August 2005 pursuant to the August 31, 1999, lease.

Petitioner states that a renewal lease was mailed to Respondent on August 18, 2004, with a commencement date of December 1, 2004.When Petitioner did not receive the executed renewal lease from Respondent, Petitioner deemed the lease renewed for one year based on Rent Stabilization Code (hereinafter "RSC") §2523.5 (c)(2).

The documentary proof shows that there was no renewal lease offer between December 2001 and August 2004.The lease renewal allegedly sent in August 2004 indicates that the last lease expired on December 31, 2001.The annual apartment registrations filed by the landlord in 2002 and 2004, listed the last lease as expiring on December 31, 2001.

Respondent argues that pursuant to RSC §2523.5 (c) (1) since all the prior renewal leases commenced on January 1, the renewal lease allegedly sent in August 2004 should have commenced on January 1, 2005, and not on December 1, 2004. Accordingly, Respondent claims that the alleged lease renewal is a nullity, and that this proceeding must be dismissed.

RSC § 2523.5 (c) (1) state as follows:

"Where the owner fails to timely offer a renewal lease or rental agreement in accordance with subdivision (a) of this section, the one- or two-year lease term selected by the tenant shall commence at the tenant's option, either (I) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner, and the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of the lease for which a timely offer should have been made."

Where the tenant receives an untimely renewal lease offer, the tenant may opt to have the renewal lease commence immediately after the last renewal lease expired or on the first rent payment date that occurs 90 days after the late offer.In this case, the last renewal lease expired on December 31, 2001. Therefore, the tenant could have opted for the renewal lease to commence on January 1, 2005 or 90 days after the lease offer which would be December 1, 2004.Assuming Respondent received the renewal lease in August 2004, she could not treat it as a nullity. Therefore, the alleged renewal lease offer, which provided for the commencement of the new lease on December 1, 2004, [*3]more than ninety (90) days after the alleged service date, was proper. Accordingly, Respondent is not entitled to the dismissal of this proceeding based on the fact that the renewal lease did not commence on January 1, 2005.

Respondent next argues that even if Petitioner was permitted to deem the lease renewed, the Petitioner was required to deem the lease renewed for two years.

Rent Stabilization Regulations § 2523.5 (c) (2) provides as follows:

"Where the tenant fails to timely renew an expiring lease or rental agreement offered pursuant to this section, and remains in occupancy after expiration of the lease, such lease or rental agreement may be deemed to have been renewed upon the same terms and conditions, at the legal regulated rent, together with any guidelines adjustments that would have been applicable had the offer of a renewal lease been timely accepted. The effective date of the rent adjustment under the "deemed" renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner."

Since Respondent has exercised her rights to renew all prior leases for two-year terms, the deemed renewal of the alleged renewal lease sent in August 2004 must be deemed renewed for two years under the same terms and conditions as the prior leases. Therefore, the new term should have been December 1, 2004 to November 30, 2006.In accordance with Rent Stabilization Code § 2524.2 (c) (2), the Golub notice must be served between 90 and 150 days prior to the expiration of the lease to properly terminate the tenancy. In this case, the window period would be in the year 2006. Thus, the Golub notice of August 2005 was not served in the proper window time period.

There is no basis to conduct a hearing to determine if the renewal lease was properly served. In viewing the facts most favorable to Petitioner, by its own admission, Petitioner served the renewal lease in August 2004, deemed the lease renewed for one year and served the Golub notice in August 2005. Therefore, the time period Petitioner used for the renewal lease term was improper, thereby, making the Golub notice premature.

Accordingly, Respondent's cross-motion to dismiss is granted. Petitioner's motion is denied as moot.

This constitutes the decision and order of the Court.

Dated: May 5, 2006_________________________________

Pam Jackman Brown, JHC

Copies to both sides:

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