Rhinelander Props., LLC v Sokolow
Annotate this CaseDecided on December 16, 2009
Civil Court of the City of New York, New York County
Rhinelander Properties, LLC, Petitioner,
against
Renee Sokolow, A/K/A RENEE WARD, Respondent.
88484/2009
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York City (David B. Cabrera of counsel), for petitioner.
Collins, Dobkin & Miller, LLP, New York City (Stephen Dobkin of counsel), for respondent.
Gerald Lebovits, J.
In this holdover proceeding, petitioner seeks to evict respondent on the basis that she declined to renew her lease as a market-rate tenant now that her apartment is no longer rent stabilized. Respondent moves for summary judgment on the ground that petitioner did not comply with the lease-notification offer specified under Rent Stabilization Law (RSL) (Administrative Code of City of NY) § 26-504.3 (e), a condition precedent to terminating respondent's tenancy to her deregulated apartment.[FN1]
The subject apartment was once rent stabilized. But petitioner brought a high-income-deregulation proceeding before the Division of Housing and Community Renewal (DHCR), and on January 22, 2009, DHCR issued a deregulation order exempting the unit because respondent's [*2]rent exceeded $2000 a month and her income exceeded $175,000 for two consecutive years.
On April 7, 2009, petitioner wrote respondent a letter, sent by regular and certified mail, "offering you a one year decontrolled lease for a monthly rent of $7,500.00" and asking her to "advise us by April 30th whether you wish to accept the renewal offer." The letter did not attach a proposed lease or lease start or end dates. Petitioner intended its letter to comply with RSL § 26-504.3 (e), which requires a landlord to give a tenant a right of first refusal to a free-market lease when an apartment is decontrolled because of high-rent/high-income deregulation. Respondent declined to accept the offer.
On April 2, 2009, respondent filed with DHCR a petition for administrative review (PAR), although the parties agreed at oral argument that petitioner did not know about the PAR when it mailed its April 7 letter. The filing of the PAR stayed DHCR's January 22 deregulation order. (See RSL § 2529.12.) On June 5, 2009, DHCR denied the PAR.
On June 12, 2009, petitioner mailed, although not by certified mail, a memo asking her to [p]lease review, sign and return immediately the enclosed leases." The leases provided a term from July 1, 2009, through June 30, 2010 — the same dates petitioner later referenced in its combined termination and nonrenewal notice dated August 28, 2009. The memos, which petitioner states was not intended to comply § 26-504.3 (e), did not, as respondent concedes, comply with § 26-504.3 (e). It was not sent by "certified . . . mail," and it did not "inform the tenant that such offer must be accepted in writing within ten days after receipt of such offer." Respondent did not sign the leases attached to the petition.
Respondent argues on summary judgment that petitioner's April 2009 offer is invalid because a stay was in effect when she filed a PAR. The court disagrees. Neither DHCR nor respondent notified petitioner about the filing of the PAR before petitioner mailed its April 2009 letter. Petitioner did not know that respondent would seek a stay. Given that a landlord must, under § 26-504.3 (e), mail a tenant a lease-notification offer "[u]pon receipt of such [DHCR] order of decontrol," it would be unjust to force a landlord to delay the mailing, which the law requires to be prompt, until the period to file a PAR has passed and the landlord eventually learns that none was filed. Were a landlord required to wait, a tenant who filed no PAR could argue that the offer was tardy. (Cf. Noto v. Bedford Apts. Co., 21 AD3d 762, 763 [1st Dept 2005], [noting that RSL § 26-504.3 [e] offer is "premature" if it is mailed after PAR is filed and before PAR is decided, because a "PAR stays the effect of the deregulation order."] [citing RSL § 2529.12].)
Respondent also argues that petitioner's April 2009 offer is invalid because it did not contain a proposed lease or lease start or end dates. All that petitioner offered was "a one year decontrolled lease for a monthly rent of $7,500.00." That complied with § 26-504.3 (e), according to petitioner, because all that subdivision (e) requires is that "an owner shall offer the [*3]housing accommodation subject to such order to the tenant at a rent not in excess of the market rent, which for the purposes of this section means a rent obtainable in an arm's length transaction." According to petitioner, the Legislative intent of subdivision (e) is that an offer open a dialogue between landlord and tenant to begin negotiations over a market lease.
No judicial or DHCR opinion that counsel or this court has found addresses what a subdivision (e) lease-notification offer must contain as a condition precedent to terminating a tenancy after a landlord prevails in a high-income deregulation proceeding and deregulates a rent-regulated apartment.
But this court need not decide that issue. Attached to the petition in this proceeding is a predicate notice — the combined termination and nonrenewal notice of August 28, 2009 — denominated as follows: Notice on Non-Renewal of Lease and Notice of Termination Based Upon the Issuance of an Order of Deregulation. That notice alleged that "the landlord offered you a Free Market lease renewal at $7,500, per month commencing to July 1, 2009 ending June 30, 20010 [sic]. To date you have failed to execute and return the renewal lease offer." Yet petitioner's April 2009 offer, which respondent argues should have included the proposed lease start and end dates, did not include that information: Only petitioner's June 2009 memorandum included leases that included that information.
This court must conclude, therefore, that the predicate notice referenced only the June 2009 offer. Petitioner did not intend to that offer comply with subdivision (2), and it did not comply with subdivision (e). It is invalid because it was not sent by certified mail and because it did not inform respondent that the offer must be accepted in writing within ten days after she received it.
Respondent's motion is granted. The predicate notice is defective because it references an invalid offer. This proceeding is dismissed.
This opinion is the court's decision and order
Dated: December 16, 2009
J.H.C.
Footnotes
Footnote 1: Subdivision 26-504.3 (e)
provides that
"[u]pon receipt of such order of decontrol pursuant to this section, an owner shall
offer the housing accommodation subject to such order to the tenant at a rent not in excess of the
market rent, which for the purposes of this section means a rent obtainable in an arm's length
transaction. Such rental offer shall be made by the owner in writing to the tenant by certified and
regular mail and shall inform the tenant that such offer must be accepted in writing within ten
days of receipt. The tenant shall respond within ten days after receipt of such offer. If the tenant
declines the offer or fails to respond within such period, the owner may commence an action or
proceeding for the eviction of such tenant."
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