Opinion
No. 570223/12.
2012-06-27
MAYFLOWER DEVELOPMENT CORP., Petitioner–Landlord–Appellant, v. Peter DERI and Lisa Kaufman, Respondents–Tenants–Respondent.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated January 11, 2012, which denied its cross motion for summary judgment on the holdover petition and granted tenant's motion to dismiss the petition.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (John H. Stanley, J.), dated January 11, 2012, modified to deny tenants' motion and reinstate the petition; as modified, order affirmed, without costs.
Tenants' preanswer motion to dismiss the holdover petition should have been denied. The record shows that tenants were given the requisite lease notice that the apartment would be deregulated upon the expiration of the J–51 tax abatement period. The notice provision contained in the parties' July 2, 2009 lease rider was not rendered invalid by any minor misstatement as to the “approximate date on which such (tax) benefit period is scheduled to expire” (Rent Stabilization Law § 26–504[c]; see Ogando v. Pamela Equities Corp., 44 AD3d 367 [2007],lv denied9 NY3d 818 [2008] ) or the inclusion by landlord of language indicating its “good faith belie[f]” that the apartment was exempt from stabilization coverage, a status which the notice aptly stated “could [be] “alter[ed]” depending on the “ultimate outcome” of the then pending litigation in Roberts v. Tishman Speyer, 13 NY3d 270 [issued Oct. 2, 2009] ). The lease rider could not reasonably be expected to provide greater clarity on the rent-stabilization coverage issue than that allowed by the unsettled state of the law at the time of its execution.
Landlord's cross motion for summary judgment, which preceded joinder of issue, was premature ( seeCPLR 3212[a]; City of Rochester v. Chiarella, 65 N.Y.2d 92, 101 [1985] ).