Opinion
November 2, 1990
Appeal from the Civil Court of the City of New York, Bronx County, Janice L. Bowman, J.
Marshall Green for appellant.
Alter Barbaro (Stephen V. Barbaro of counsel), for respondents.
Final judgment entered February 14, 1989 affirmed, with $25 costs.
This is a holdover proceeding to evict a rent-stabilized tenant whose lease was not renewed upon the ground of owner occupancy. The apartment was sought because petitioner Dominguez (who had recently reconciled with his wife) required tenant's three-bedroom apartment for the use of himself, his wife and their two children. The record is sufficient to support the trial court's finding that petitioner was proceeding in good faith and that the matter was not retaliatory in nature. The fact that there was another vacancy in the building shortly before petitioner determined to bring this proceeding does not compel a finding of lack of good faith (Matter of Berlinrut v Leventhal, 43 A.D.2d 522).
The notice of termination given by the petitioner, to the effect that "the owner seeks in good faith to recover possession for his own personal use and occupancy", complied with the notice requirements of section 2524.2 of the Rent Stabilization Code (9 NYCRR) (see, Whang v Wald, NYLJ, Apr. 3, 1990, at 29, col 5 [App Term, 2d Dept]). The tenant was adequately alerted to the ground for removal and the fact that the apartment was sought for the petitioner's personal use.
Under the circumstances herein no further elaboration was necessary to apprise the tenant of the reason for the nonrenewal (cf., Kaycee W. 113th St. Corp. v Diakoff, 160 A.D.2d 573; First Sterling Corp. v Zurkowski, 142 Misc.2d 978 [App Term, 1st Dept]).
I would reverse and dismiss the petition. The issue is the adequacy of the termination notice. Section 2524.2 (b) of the Rent Stabilization Code (9 N.Y.CRR) provides: "Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground * * * upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession" (emphasis added).
The ground relied upon by the petitioner is contained in section 2524.4 (a) (1) of the Rent Stabilization Code (9 N.Y.CRR) which authorizes the owner "to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence in the City of New York".
Petitioner's notice of termination states that "the owner seeks in good faith to recover possession for his own personal use and occupancy." This notice fails to set forth the "facts necessary" to establish the ground. Furthermore, it fails to allege, even in this conclusory form, that the premises were to be used for his primary residence as required by Rent Stabilization Code (9 N.Y.CRR) § 2524.4 (a) (1).
It has previously been determined, in connection with non-primary residence proceedings, that Rent Stabilization Code (9 N.Y.CRR) § 2524.2 (b) requires the allegation of particular facts in the termination notice (Berkeley Assocs. Co. v Camlakides, NYLJ, Feb. 15, 1990, at 26, col 4 [App Term, 1st Dept]; see also, Kaycee W. 113th St. Corp. v Diakoff, 160 A.D.2d 573; First Sterling Corp. v Zurkowski, 142 Misc.2d 978). The same regulation should apply with equal force to termination notices served in owner occupancy proceedings.
The issue of the sufficiency of the termination notice was preserved for our review by tenant's motion to dismiss made at the beginning of trial.
OSTRAU, P.J., and PARNESS, J., concur; McCOOE, J., dissents in a separate memorandum opinion.