ATM Four LLC v Urrutia

[*1] ATM Four LLC v Urrutia 2007 NY Slip Op 51243(U) [16 Misc 3d 1103(A)] Decided on June 22, 2007 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 22, 2007
District Court of Nassau County, First District

ATM Four LLC, Petitioner(s)

against

Cesar Urrutia, Respondent(s).



SP 1200/07



Michael Wigutow, Of Counsel, Jeffrey A. Seigel, Esq., Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100; Wolfson & Grossman, LLP, Attorneys for Petitioner, 1600 Stewart Avenue, Westbury, New York 11590, 516-745-8000.

Scott Fairgrieve, J.

In this holdover proceeding, brought by the petitioner on the grounds that the respondent failed to timely execute and return a renewal lease pursuant to the Emergency Tenant Protection Act 9 NYCRR §2503.5(a), the respondent has moved to dismiss this claim pursuant to CPLR Rule 3211(a)(1) and (7), averring that the improper renewal was cured pursuant to 9 NYCRR §2503.5 (b)(1). For the reasons stated below, this motion is granted.

The respondent renewed his lease agreement with the petitioner, ATM Four LLC, on November 29, 2005, the day before the previous lease would lapse. On August 11, 2006, the petitioner initially mailed the respondent a new lease renewal offer via certified mail. Respondent claims that he never received notice that the post office was holding the certified letter for him.

The respondent and his wife filed several complaints with the New York State Division of Housing and Community Renewal regarding repairs on the premises on October 18, 2006. The petitioner was notified about these complaints eight days later.

On October 27, 2006, the petitioner sent another letter via certified mail stating that the respondent's lease expired on November 30, 2006, and if the respondent wanted to continue to live at the premises, he needed to sign a lease at the management office. The respondent's wife acknowledged receipt of this letter on or about November 14, 2006. The following day, the respondent went to the petitioner's office and obtained a lease renewal, which he signed and submitted on November 21, 2006.

In a letter dated on November 29, 2006, the petitioner informed the respondent that the new lease he signed would not be accepted as a renewal because it was not submitted within sixty days of the date that the petitioner had sent the renewal lease on August 11, 2006.

On December 6, 2006, the respondent was served with the notice of petition. Respondent moved to dismiss the petition on January 2, 2007, contending petitioner, by accepting the rent for December, agreed to the respondent's continued tenancy. The petitioner withdrew his motion [*2]and subsequently, on or about January 17, 2007, served a notice of termination of tenancy to the respondent, terminating the tenancy as of February 28, 2007. Petitioner claimed that the respondent failed to return the renewal lease within 60 days after they were served with it.

The respondent and his family did not vacate the premises, and were served with a notice of petition for the current proceeding on March 6, 2007. However, the money orders for January, February, and March rent had been cashed by the petitioner.

DECISION

The respondent's failure to return the renewal lease sent to him on August 11, 2006 within the 60 day time period does not provide an incurable bar from renewing his lease.

9 NYCRR §2503.5(a) provides that:

"on a form prescribed by the division signed and dated by the landlord, every landlord shall notify the tenant in occupancy not more than 120 days and not less than 90 days prior to the end of the tenant's lease term, by certified mail, of such termination of the lease term and offer to renew the lease at the legal regulated rent permitted for such renewal lease and otherwise on the same conditions as the expiring lease, and shall give such tenant a period of 60 days from the date of mailing of such notice to renew the lease and accept the offer"

Although the petitioner sent the lease to the respondent through certified mail, the letter was sent back to the petitioner informing him that it was "unclaimed." The court in 67 8th Avenue Associates v. Hochstadt, 88 AD2d 843 (1st Dep't 1982) held that a tenant's failure to timely respond to a landlord's renewal notice sent by certified mail is excusable when the landlord was informed that the lease was "unclaimed," as is the case in the instant proceeding. Thus, the respondent's failure sign the lease within sixty days did not prevent the respondent from being able to renew his lease. (See, ATM Two v. Ramos, 189 Misc 2d 770, 772 [Nassau Cty. Dist. Ct. 2001]).

The petitioner's claim that failing to sign the renewal lease in the requisite time period is an incurable defect is unfounded. Under 9 NYCRR §2503.5(a), a landlord must provide a renewal lease no earlier than 120 days and no later than 90 days prior to the end of the lease. The tenant must then return the renewal lease within sixty days of receiving it. While the respondent did not return his lease within sixty days of August 11, 2006, he did sign a new lease in November, and the petitioner continued to accept the rent provided by the respondent in the following months.

9 NYCRR §2503.5(b)(2) states:

"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 is deemed to have been renewed upon such 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." [*3]

This was interpreted by ATM Four v. Ramos, 188 Misc 2d 310 (Nassau Cty. Dist. Ct. 2001) to mean that if a tenant remains within an apartment following a failure to renew the lease correctly, a continuation of payment will cure this failure. The petitioner's use of Carriage House v. Colon, 128 Misc 2d 143 (N.Y.City Ct. 1985) to support its argument that lease renewal submitted to the landlord after sixty days is a defect that can not be cured was improper, as the subsequent enactment of 9 NYCRR §2503.5(b)(2) disputes this notion.

The Court finds that when the petitioner continued to accept the rent that was provided by the respondents, the petitioner was accepting the lease renewal, despite its failure to meet the requirements of 9 NYCRR §2503.5(a). As was stated in Martine Associates v. Donahoe, 11 Misc 3d 129a, 816 NYS2d 697 (2006), "[the] landlord's acceptance of rent in the months following the expiration of the lease vested tenant with new tenancy rights- at a minimum, the rights of a month-to-month tenant."

In this case, the respondents signed a lease that was provided by the petitioners, thus granting them the rights provided in that lease. Further, there is no evidence that the petitioner will be prejudiced by the lateness of this lease agreement, as the second lease sent to the respondent was not sent by the petitioner until the end of October, which was clearly past the statutory time frame.

By cashing the money orders provided by the respondent, and offering to renew the lease in October of 2006, the petitioner has waived any claim that respondent failed to timely return the lease pursuant to 9 NYCRR §2503.5(a).

For the above reasons, the motion to dismiss is granted.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated: June 22, 2007

CC:Nassau/Suffolk Law Services, Committee Inc.

Wolfson & Grossman LLP

SF/mp