Opinion
71753/08.
Decided October 8, 2008.
Michael Nachtome, Esq., Kossoff Unger, Attorney for Petitioner.
Timothy L. Collins, Esq., Collins Dobkin Miller, LLP, Attorney for Respondent.
Respondents, Patrick and Rita Fitzmaurice, are the tenants of record of apartment 25B at 95 West 95th Street in the Borough of Manhattan ("subject premises") whose most recent lease expired on April 30, 2008. Prior to the expiration of the last lease, petitioner, Columbus 95th LLC, mailed a "COMBINED NOTICE OF TERMINATION AND THIRTY DAY [30] INTENTION NOTICE PURSUANT TO §§ 2524.2(C)(2) AND 2524.4(C) OF THE RENT STABILIZATION CODE" (hereinafter " Golub Notice") to respondents indicating its intent to terminate their tenancy based on its belief that they were not using the premises as their primary residence. Petitioner then commenced this holdover proceeding based upon that predicate notice.
Respondents now move pursuant to CPLR 3211 to dismiss the petition for lack of personal jurisdiction. Petitioner opposes the motion. In support of their motion, respondents argue that they were not timely served with the notice of non-renewal as required by Rent Stabilization Code ("RSC") §§ 2524.2 (c)(2) and 2524.4 (c) which mandate that the landlord provide a tenant of its intent not to renew a lease on the ground of nonprimary residence "at least 90 and not more than 150 days prior to the expiration of the lease term."
The facts surrounding the service of the Golub Notice are rather unusual and not in material dispute. The last written lease between the parties expired on April 30, 2008. Petitioner, through its counsel, prepared a Golub Notice dated January 28, 2008. That notice was sent to respondents, at the subject premises and to an alternative address in West Nyack, New York, by United States Postal Service ("USPS") overnight mail that day. USPS records show that the although the envelopes were scheduled to be delivered on January 29, 2008, they were not delivered until January 30, 2008 at approximately 3:30 pm. USPS records also show that the envelopes were signed for by a "J Vargas."
On January 30, 2008, respondents received a USPS notice in their mailbox indicating that five express mail envelopes were delivered to the "FRONT DESK." Respondent-undertenant Ryan Fitzmaurice immediately went to the doorman to retrieve the envelopes. However, the doorman was unable to locate them and suggested that he go to the post office.
The next day, January 31, 2008, respondent Rita Fitzmaurice went to the post office to inquire about the envelopes. An agent from the post office informed her that the envelopes were not there. Respondent then returned to the building and asked for the USPS envelopes. The doorman again stated that they were not there. Respondent then went back to the post office and was again informed that they were not there either. Respondents contend that they never authorized the doormen to hold their packages or mail.
On February 4, 2008, respondent Rita Fitzmaurice again inquired about the envelopes with the doorman, Thomas LaRocco. Mr. LaRocco then checked the package room and again informed respondent that there were no express mail envelopes for her or her family. Mr. LaRocco then signed a statement to that effect ( see Respondents' Exhibit B to motion papers).
On February 5, 2008, respondent Rita Fitzmaurice once again went to the post office in search of the envelopes. The post office personnel was still unable to find the envelopes but did provide respondent with further tracking records indicating that the envelopes were delivered to her building and signed for by "J Vargas" a person respondent believed to be a doorman at her building named Juan Vargas. Respondent states that she returned to the building and asked Mr. Vargas about the express mail envelopes and that he was only able to remember that he signed for them, not where they were located. Respondent and Ms. Vargas then searched the area but still could not find the express mail envelopes. Mr. Vargas then also signed a note indicating that he was unable to locate the "package" ( see Respondents' Exhibit D to motion papers). However, later that night as respondent was walking out of the building, Mr. LaRocco stopped her and gave her the subject express mail envelopes containing the Golub Notices.
Respondents argue that since the landlord failed to deliver the notice of non-renewal until after the Golub period, the petition must be dismissed. Under the Court of Appeals holding in Golub v Frank, 55 NY2d 900, 901 (1985], the failure by a landlord to "give notice to the tenant of [its] intention not to offer a renewal lease not more than 150 and not less than [90] days prior to the end of the tenant's lease term" entitles the tenant to a renewal lease and dismissal of the petition. Here, the notice was sent via overnight mail approximately 92 days before the expiration of the lease term. It is undisputed that respondent did not receive the notices until approximately 84 days before expiration of the lease term approximately a week after the "window" period expired. While the court notes that under appellate case law, there is no requirement of providing additional time for mailing of Golub Notices ( see Skyview Holdings, LLC v Cunningham, 13 Misc 3d 102, 105 [App Term, 1st Dept 2006]), this is not an instance where the delay in receipt was a result of the mailing.What makes this case different, is that the service of the Golub Notice by mail on January 28, 2008, resulted in effectively serving the landlord, not on the tenant. While service of process on a doorman may be acceptable in "some circumstances" ( F.L. Dupont, Glore, Forgan Co. v Chen, 41 NY2d 794, 795), such service in the landlord-tenant context gives rise to significantly increased scrutiny as "the petitioner seeking to effectuate service has control over the doorman/concierge" ( Pena v Aadal, NYLJ 1/13/89; 22:6 [NY County Civ Ct]; see also Lexington 56th Assocs. v Markley, 50 Misc 2d 9 [App Term 1st Dept 1966] [under RPAPL 735, service of petition on doorman was insufficient to acquire jurisdiction over tenant]). In this case, the delay in service on the respondents was caused by the direct actions of the landlord's agents the building staff in holding the notice of non-renewal until after the "window" period expired. Thus, petitioner maintained control over the notice, at no fault of respondents, and caused it to be served in an untimely fashion. This deprived respondents of the statutory notice period and impaired their ability to weigh their response. Accordingly, the untimely service of not Golub notice requires dismissal of the petition under these unique circumstances.
The RSC was amended subsequent to the Golub decision to extend the "window" period for service of notices of non-renewal from 120 to 150 days before expiration of the lease term to 90 to 150 days before expiration of the lease term ( see §§ 2524.2 [c][2] and 2524.4 [c]).
This constitutes the decision and order of this court.