Opinion
85933/03.
Decided November 21, 2003.
After considering the testimony and the other evidence in the trial of this "owner's own use" holdover proceeding, the court dismisses the proceeding on the basis of the following findings of fact and conclusions of law.
The premises at issue is a rent-stabilized apartment. Respondent has been the tenant of record since July 2001. Petitioner acquired the building in which the premises is located by a deed dated December 27, 2002. Three and a half months later, by a letter dated April 10, 2003, petitioner notified respondent that he would not renew her lease upon its expiration on July 14, 2003 because he needed the apartment for the use of his son, who had recently turned eighteen years of age.
Respondent raised the defense, among others, of retaliatory eviction, see, RPL § 223-b. The defense was predicated, in part, upon a report by the City of New York's Department of Housing Preservation and Development showing that there were housing code violations at the premises, and upon a letter dated April 9, 2003 from petitioner to respondent in which he characterized her as, among other things, a "problem tenant."
Ordinarily, when the lease to a rent stabilized apartment expires, the landlord must offer the tenant a renewal. "[T]he right to a renewal lease is one of the cornerstones of the rent stabilization system," Caine v. Carreker, 116 Misc 2d 419, 420 (App Term, 1st Dep't., 1982). However, Rent Stabilization Code (9 NYCRR) § 2524.4(a)(1) provides an exception for an "owner who seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence * * * and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence * * *" The owner must prove that he is acting in "good faith." Nestor v. Britt, 213 AD2d 255 (1st Dep't, 1995).
Petitioner testified that he lives in a single family home with his wife and three children, that there are three bedrooms, that one is occupied by himself and his wife, one by his minor daughter, and one by his two sons, who are now sixteen and eighteen years old. Petitioner and his wife testified that they wanted the apartment for their older son because the two boys quarrel with each other from time to time, the younger son's presence in the shared bedroom interferes with the older son's ability to study, and the older son would help manage the building in which the premises is located.
The older son did not testify. As an excuse, petitioner stated that the son was in school on the day of the trial. However, petitioner did not seek an adjournment or a continuance so that the son might testify. The court holds that, especially in light of the significance of the stakes here ( i.e., a place to live), the proffered excuse is not sufficient. The court holds that to establish petitioner's good faith, the son had to testify, subject to cross-examination, that he would occupy the apartment as his primary residence. Without credible testimony from the son (or a sufficient excuse for its absence), it is "merely a matter of speculation," Dusza v. Rela, NYLJ, November 8, 1991, page 26 col. 3 (App Term, 2nd 11th Jud Dists) whether he will comply with his parents' wishes and live at the premises.
As the court is dismissing this proceeding because petitioner did not make out all of the elements of his prima facie case, the court declines to address respondent's defense of retaliatory eviction and her other arguments.
The court directs the clerk to enter a judgment in respondent's favor dismissing this proceeding. Petitioner shall offer respondent a lease renewal that conforms with the governing statute, i.e., a lease with a one or two year term beginning, at respondent's option, "either (i) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant." 9 NYCRR § 2523.5(c))".
The court attorney will mail to the parties copies of this decision and order along with their exhibits.