Opinion
88298/04.
Decided December 8, 2004.
Petitioner K.S.L.M. Columbus Apartments, Inc. commenced this holdover proceeding based on allegations that respondent Betty Bonnemere no longer occupies the subject premises as her primary residence. Respondent moves to dismiss pre-answer. Petitioner cross-moves for leave to conduct discovery and for use and occupancy.
On June 1, 2004, petitioner mailed the notice of non-renewal (the "Golub Notice") by regular and certified mail, return-receipt requested. Respondent does not deny that she signed for and received the Golub Notice on June 3, 2004. Pursuant to 9 NYCRR § 2524.2(c)(2) of the Rent Stabilization Code, the Golub Notice must be served upon the tenant at least 90 and not more than 150 days prior to the expiration of the lease term. Petitioner contends that service of the Golub Notice afforded respondent the minimum notice period.
General Construction Law, Article 2, § 20, prescribes the method to calculate the 90 day period, which requires that the date of the event be excluded. See J.P. Morgan Chase Bank v. Lowell, 309 AD2d 541 (1st Dept 2003). If the date when petitioner mailed the Golub Notice is considered, petitioner afforded respondent 92 days notice. If the later date of actual receipt is used, petitioner afforded respondent 90 days notice. Thus, petitioner complied with the Rent Stabilization Code as currently enacted.
Respondent moves to dismiss the proceeding on the ground that petitioner did not provide adequate notice as required by the recent Court of Appeals decision in Matter of ATM One, LLC v. Landaverde, 2 NY3d 472 (2004).
In Landaverde, the landlord brought a holdover proceeding alleging that the tenant violated the maximum occupancy provision of the parties' lease. The tenant received the notice to cure nine days before the date by which she had to cure. The applicable regulation provided the tenant with a minimum of 10 days to cure the alleged violation of lease. The Court of Appeals held:
[O]wners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period (see e.g. CPLR 2103 [b] [2]). In this manner, service will be deemed complete upon mailing, and a properly executed affidavit of service will raise a presumption that proper mailing occurred.
We agree with District Court . . . that the addition of a definite number of days is necessary for service by mail to ensure that tenants are not disadvantaged by an owner's choice of service method, and that such an addition provides a practical and fair solution to this regulatory ambiguity.
The Court of Appeals explained that the addition of five days when serving cure notices by mail "balances the need for orderly and efficient resolution of lease violations with the stated purposes of the ETPA [Emergency Tenant Protection Act]." Landaverde at p. 478. As expressly stated, the central concern was that tenants receive the benefit of the cure period and not be disadvantaged by the service method, which could result in inadvertent forfeiture of their regulated tenancies.
The question before this Court is whether the holding of Landaverde should be expanded to apply to service of the Golub Notice? This Court finds that it does not.
Generally, cure periods are of short duration. Pursuant to the Rent Stabilization Code, the cure period is only ten days. 9 NYCRR § 2504.1(d)(1)(i)(c). The date by which the cure must be accomplished is arbitrarily set by the landlord. The notice to cure demands that the tenant take affirmative steps to cure the lease violation upon pain of the premature termination of the lease term. Upon timely cure, the landlord cannot commence a summary proceeding to retake possession of the subject premises, and the tenant is no longer in jeopardy of forfeiting the tenancy.
Given the import of the notice to cure, it is not unreasonable that a landlord add the extra five days to ensure that the tenant enjoys the benefit of the full cure period mandated by the Rent Stabilization Code. Similar considerations have led courts to apply Landaverde to notices of termination served pursuant to the Rent Stabilization Code. See Kerrin Realty Corp. v. Cruz, Civ Ct, New York County, August 25, 2004, Lai, J., Index No. LT 81894/03.
When a landlord elects to terminate the tenant's lease, the effective date is again arbitrary and contravenes the expectations of the parties as reflected by the negotiated expiration date of the lease. Upon receipt of the termination notice, the tenant is given a relatively short period of time to surrender possession of the subject premises or to prepare to litigate the imminent summary proceeding.
The same equitable considerations do not pertain to the Golub Notice. Where an owner believes that a dwelling unit is not the tenant's primary residence, the owner can invoke this ground to deny the tenant's right to a renewal lease. The Golub Notice is sent during the renewal window period with the purpose of notifying the tenant of the owner's intention not to offer a renewal lease. Golub v. Frank, 65 NY2d 900 (1985). Unlike both the notice to cure and notice of termination, the Golub Notice does not contemplate or require any affirmative steps by the tenant. Any action taken by the tenant immediate or otherwise will not negate the landlord's intent not to renew the lease.
In the instant proceeding, petitioner afforded respondent 90 days notice of its intent not to renew her lease prior to expiration of the lease. Petitioner's service of the Golub Notice complied with the requirements of the Rent Stabilization Code; Respondent received the notice intended by applicable regulation.
Unlike other holdover proceedings, a pre-answer dismissal is tantamount to one on the merits because the Rent Stabilization Code bars prosecution of the proceeding in the absence of a timely Golub Notice. Petitioner would have to offer respondent a renewal lease without reaching the merits of its claims. Moreover, if respondent is not in fact occupying the subject premises as her primary residence, the tenant would have subverted the legislative intent of the ETPA preserving scarce New York City housing accommodations for tenants who maintain such dwellings as their primary residence. See Lufkin v. Drago, 126 Misc 2d 177, 179 (Civ Ct NY Co 1984), aff'd, 129 Misc 2d 1108 (App Trm 1st Dept 1985).
This Court also disagrees with respondent that a "bright line rule" covering all notices governed by the Rent Stabilization Code was intended by the Court of Appeals. In its directive to the DHCR, the Court of Appeals encouraged amendment of the regulations consistent with its determination in order to provide "guidance to parties who elect to serve notices to cure by mail." Landaverde at p. 478. This directive suggests that the Landaverde holding was limited solely to notices to cure. If a more wholesale result was intended, the Court of Appeals could have simply applied CPLR 2103 to the catchall service provision of 9 NYCRR 2508.1(a), which applies to all notices, orders, petitions for administrative review, answers and other papers.
Accordingly, this Court holds that ATM One, LLC v. Landaverde, 2 NY3d 472 (2004), does not apply to the service of Golub Notices. The motion to dismiss the proceeding is hereby denied.
The Court grants the cross-motion to the extent of directing respondent Betty Bonnemere to submit to an examination before trial on a date and time and at a location mutually agreed to by counsel. Respondent shall also provide all relevant documentation responsive to the proposed Notice of Discovery And Inspection and is permitted to redact private financial information, i.e., account numbers, telephone numbers dialed.
Based on facts adduced at the deposition, petitioner may renew its motion to depose the other non-parties after proper service upon these individuals.
Respondent does not object to the payment of use and occupancy pendente lite. Respondent shall pay use and occupancy for the period commencing October 2004 until the final disposition of this proceeding at the rate of $486.62 the rate reserved in the most recent renewal lease between the parties.
The proceeding shall remain "off calendar" pending completion of discovery. The Court shall mail courtesy copies of its decision and order to counsel.