Opinion
2005-520 WC.
Decided February 28, 2006.
Appeal from an order of the City Court of White Plains, Westchester County (Jo Ann Friia, J.), entered February 22, 2005. The order granted tenant Linda Donahoe's motion to dismiss the summary proceeding.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and LIPPMAN, JJ.
In this proceeding to remove a rent-regulated tenant on the ground that she failed to execute a renewal lease (Emergency Tenant Protection Regulations [ETPR] [ 9 NYCRR] § 2504.2 [f]), landlord asserts that the renewal lease was mailed to tenant on April 30, 2004 and that tenant's two-year lease expired on July 31, 2004 without tenant's having renewed the lease. The petition further reveals that the tenancy continued or was renewed after July 31, 2004, inasmuch as landlord accepted August, September and all but $50 of the October 2004 rent. On November 5, 2004, landlord served a 15-day notice on tenant, which notice purported to terminate the tenancy as of November 30, 2004 for tenant's failure to sign the renewal lease ( see ETPR § 2504.3 [c] [1]).
The City Court dismissed the petition based on landlord's failure to serve a notice to cure (ETPR § 2504.1 [d] [1]). The court recognized that in Young v. Ruderman (NYLJ, Feb. 1, 1994 [App Term, 9th 10th Jud Dists]) and Carriage House Realty Co. v. Conlon ( 128 Misc 2d 143, 145 [Yonkers City Ct 1985]) it was held that no notice to cure is required under the ETPR when the ground for removal is the tenant's failure timely to sign a renewal lease because the failure is not "curable" (ETPR § 2504.1 [d] [2] [i]), since allowing a cure period would impermissibly enlarge the time prescribed for the tenant to respond (ETPR § 2503.5 [a]). The court concluded, however, that these cases were superseded by more recent decisions holding that similar failures by New York City tenants protected under the Rent Stabilization Code are subject to correction under the broad remedial ambit of RPAPL 753 (4) ( see e.g. Fairbanks Gardens Co. v. Gandhi, 168 Misc 2d 128 [App Term, 2d 11th Jud Dists 1996], affd 244 AD2d 315, and cases cited therein).
On appeal, the parties seek to argue the correctness of the City Court's ruling. However, in our view, the issue decided by the City Court is not properly presented in this proceeding. It is clear from the face of the petition that landlord did not commence this proceeding immediately upon the expiration of the lease but instead continued the tenancy for several months following the lease's expiration. 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 ( see Real Property Law § 232-c) and perhaps even renewal rights ( see ETPR § 2503.5 [b] [2]; see generally Baginski v. Lysiak, 154 Misc 2d 275 [App Term, 2d 11th Jud Dists 1992]). It is unnecessary here to determine the precise extent of tenant's rights since, in any event, this proceeding fails. If tenant now has renewal rights, she can no longer be removed for failure to sign the renewal lease. If she is merely a month-to-month tenant, she was entitled to a month's notice (Real Property Law § 232-b), and landlord did not serve such a notice. Therefore, upon an examination of landlord's petition ( see CPLR 409 [b]), it is our view that this proceeding must be dismissed.
Rudolph, P.J., McCabe and Lippman, JJ., concur.