Opinion
No. 089910/09.
2010-07-26
John SHIMKO, Jan Shimko, and Arusha Shimko, Petitioners, v. Barbara CHAO, Respondent.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York City (Harriet Polinsky and Steve A. Rubinstein), for petitioners. Goldberg, Scudieri, Lindenberg & Block, P.C., New York City (Ivy B. Alexander), for respondent.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York City (Harriet Polinsky and Steve A. Rubinstein), for petitioners. Goldberg, Scudieri, Lindenberg & Block, P.C., New York City (Ivy B. Alexander), for respondent.
GERALD LEBOVITS, J.
In this holdover proceeding, petitioners move to amend their affidavit of service for the nonrenewal notice, to dismiss respondent's affirmative defenses under CPLR 3211(b), and for summary judgment under CPLR 3212. Respondent cross-moves for partial summary judgment.
Petitioners allege that they began this holdover proceeding based on the timely service on respondent of a “Notice of Nonrenewal of Lease, Termination of Tenancy and Landlord's Intention to Recover Possession Based on Owner Occupancy.” (Petitioners' Amended Notice of Motion, Exhibit A.) Petitioners argue that the nonrenewal notice was served on respondent in accordance with Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2. Respondent alleges that she never received the notice and, thus, that this court does not have personal jurisdiction. (Respondent's Notice of Cross–Motion, Affidavit in Support ¶ 12.)
RSC § 2524.4 sets forth the two grounds on which a landlord may refuse to renew a rent-stabilized tenant's lease. One ground for nonrenewal is based on owner occupancy. (RSC § 2524.4[a].) On this ground, an owner may opt to decline to renew a rent-stabilized tenant's lease on the condition that the owner, or the owner's immediate family member, will take possession of the unit and make it the primary residence. ( Id.) This option requires an owner to provide written notification of an intent not to renew the lease at least 90 days, and not more than 150 days, before the lease term expires. (RSC § 2524.2[c][3].) The RSC further requires that the written notification set forth with specificity the grounds for nonrenewal, the facts necessary to establish that ground, and the date when the tenant must surrender possession. (RSC § 2524.2 [b].)
Proper service of this written notification, often referred to as a “Golub notice,” is the prerequisite to commencing a holdover proceeding based on owner occupancy. (RSC § 2524.2[a]; Golub v. Frank, 65 N.Y.2d 900 [1985].) RSC § 2524.2(c)(3) requires only that service of the Golub notice take place between 90 and 150 days before the expiration date of the lease. It does not indicate the method to serve a Golub notice. But the method of service should mirror that set forth in RSC § 2523.5, which allows service of renewal notices by personal delivery or regular mail. (Trojan v. Wisniewska, 8 Misc.3d 382, 391 [Civ Ct, Kings County 2005].) Failure to plead and prove proper service of the required Golub notice will result in dismissal. (Katz Park Ave. Corp, v. Olden, 158 Misc.2d 541, 545 [Civ Ct, N.Y. County 1993].) If the petitioner is unable to prove proper service, a new proceeding pleading proper service of the required predicate notice must be commenced. ( Id.)
Respondent asserts that she was not properly served with the required Golub notice and never received the predicate notice timely. (Respondent's Notice of Cross Motion, Affidavit in Support ¶ 12.) Petitioners concede that the original affidavit of service was incorrect in that it stated that service took place on May 28, 2009, even though the certified mailing and certificate of mailing receipts show that service did not take place until May 29, 2009. (Petitioners' Amended Notice of Motion, Affidavit in Support Nadeem Veerapen ¶ 4.) Petitioners argue that the defect in the affidavit was inadvertent and did not prejudice respondent. According to petitioners, service was effected on respondent within the required window period under RSC § 2524.2(c)(3). To conform the papers to the proofs, petitioners seek to amend the date discrepancy on the affidavit of service. ( Id. at Affirmation in Support ¶ 48.)
Mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service. (E.g. First Ave. Owners Corp. v. Riverwalk Garage Corp., 6 Misc.3d 439, 442 [Civ Ct, N.Y. County 2004].) Respondent's denial of service relies wholly on petitioners' defective affidavit of service. (Respondent's Cross Motion, Affidavit in Support ¶ 12.) Respondent has not provided any further evidence or other probative facts to support her denial that she properly received the Golub notice. (See id. at 442 [“A conclusory denial not accompanied by further probative facts' does not require a traverse hearing.”], citing Am. Sav. & Loan Assn. v.. Twin Eagles Bruce, 208 A.D.2d 446 [1st Dept 1994].) For their assertion that respondent was properly served with the required predicate notice, petitioners have provided the following: copies of the United States Postal Service certified mail receipt and certificate of mailing receipt, both dated May 29, 2009, and addressed to respondent; the proposed amended affidavit of service sworn to by Nadeem Veerapen, reflecting a service date of May 29, 2009; the affidavit of Nadeem Veerapen admitting the error in the filed affidavit of service; and the United States Postal Service tracking log for the certified mailing, which illustrates that the Postal agent attempted to deliver the certified letter twice but that it ultimately went unclaimed and was returned to the sender. (Petitioners' Notice of Motion, Exhibits A, K.; Petitioners' Reply Affirmation in Further Support, Exhibit A.)
Petitioners have tendered competent proof of service of the required Golub notice. Personal jurisdiction over the respondent has been acquired. Accordingly, respondent's sixth and seventh affirmative defenses are dismissed. Respondent's cross-motion for partial summary judgment on her sixth affirmative defense is denied.
Respondent's first affirmative defense alleges that petitioners failed to comply with RPAPL 735, resulting in improper service of the notice of petition. (Respondent's Notice of Appearance, Verified Answer and Counterclaim ¶ 2.) Respondent argues that petitioners failed to make reasonable attempts to effectuate personal service before resorting to conspicuous placement and mail. Additionally, respondent alleges that the mailings were not done timely. ( Id.) Petitioners argue that two attempts were made to effect personal service on respondent at different hours before resorting to conspicuous placement and mail. (Petitioners' Amended Notice of Motion, Affirmation in Support ¶ 9.) Petitioners have provided the affidavit of service, which indicates that service was completed when the notice of petition was mailed by certified and regular mail one day after the last attempt at personal service. ( Id.)
RPAPL 735 requires personal delivery of notice of petition. When personal delivery cannot be attained, RPAPL 735(1) allows for conspicuous placement, or affix and mail, of that notice and mailing it within a day of placement. RPAPL 735 does not quantify the number of attempts a process server must make before resorting to conspicuous placement and mailing. Process servers may resort to affixing and mailing if, on reasonable application, they are unable to effect personal service. (E.g. Parkchester Apts. Co. v. Hawkins, 111 Misc.2d 896, 897 [App Term, 1st Dept 1981].) Parkchester held that in a summary proceeding, a process server is not held to the due-diligence standard under CPLR 308(4). ( Id. at 897.) Rather, a lower grade of effort is acceptable—reasonable application—and resorting to affix and mail is permissible where a process server had attempted personal service when it could reasonably be expected that the tenant would be home. ( Id.; Fourth Ave. Mgt. Corp. v. Broshahan, 117 A.D.2d 705, 705–706 [2d Dept 1986].)
Based on the foregoing, and for the reasons offered earlier regarding denial of service of process, respondent has not persuaded this court that petitioners failed to comply with RPAPL 735. Accordingly, the first affirmative defense is dismissed.
Respondent's second affirmative defense alleges that the lease for the subject unit has not expired. (Respondent's Notice of Appearance Verified Answer and Counterclaim, ¶ 2.) Respondent's basis for this argument is the date the renewal lease was signed on February 18, 2008. As such, respondent argues the lease could not have begun before May 1, 2008. (Respondent's Notice of Cross–Motion, Affidavit in Support ¶¶ 21–22.) Petitioners argue that respondent agreed to the lease term by settlement stipulation in earlier litigation. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 19, Exhibit I.)
Respondent cites RSC § 2523.5(c)(1), which provides that when a landlord fails timely to offer a renewal lease, the tenant may elect to select the date on which the renewal lease shall commence—either on the renewal date or not more than 90 days after the date the landlord should have offered the renewal lease. Respondent has offered no evidence that she did not elect the date the renewal lease would commence. On the contrary, the settlement stipulation provided by petitioners is prima facie evidence that respondent knowingly and voluntarily, represented by counsel, decided to have the lease commence on the renewal date. (Petitioners' Amended Notice of Motion, Exhibit I.) Respondent has not offered any relevant evidence to contradict this documentary evidence. Thus, respondent's second affirmative defense is dismissed.
Respondent's third affirmative defense alleges that the nonrenewal notice is insufficient because it failed to specify which landlord seeks to occupy the subject unit. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶¶ 3, 9.) Petitioners argue that the nonrenewal notice provided sufficient facts for respondent to know which of the building owners seeks the subject unit. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 25.)
A nonrenewal notice based on owner occupancy must give specific information forming the owner's desire to take possession of the subject premises and the legal grounds to possess the premises. (RSC § 2524.2[b]; Haruvi v. Rosen, 2005 N.Y. Misc. LEXIS 3368, *5–6 [Civ Ct, N.Y. County June 15, 2005], affd 10 Misc.3d 137[A], 2005 Slip Op 5216[U] [App Term, 1st Dept Dec. 29, 2005]; Teachers College v. Kadhi–Smith, 2006 N.Y. Misc. LEXIS 4012, at *4 [Civ Ct, N.Y. County Mar. 8, 2006]; Trojan, 8 Misc.3d at 387].) RSC § 2524.4(a)(3) permits only one owner of a building to reclaim a unit based on owner occupancy regardless of the type of ownership or number of owners for subject premises. A tenant must decide whether to oppose the termination of the tenancy based on the facts stated in the notice of nonrenewal. (Haruvi, 2005 N.Y. Misc. LEXIS 3368, at *5.) Facts known only to the landlord must be included in the notice so that the tenant can make a decision whether to comply or oppose the threatened termination. ( Id.; Barrett v. Rodriquez, 2006 N.Y. Misc. LEXIS 3732, at *5–6 [Civ Ct, Kings County Nov. 22, 2006][“[B]arebones allegation concerning the landlord's intent to recover possession of Apartment ... for use by the landlord and her immediate family members” is insufficient to meet the specificity requirements of RSC § 2524.2[b].) Instead, “[t]he appropriate test to determine the sufficiency of a predicate notice in a summary proceeding ... is one of reasonableness in view of the attendant circumstances.” ‘ ( Kokot v. Green, 14 Misc.3d 1224[A], 2007 N.Y. Slip Op 50159[U], *3 [Civ Ct, N.Y. County Jan. 31, 2007], quoting Hughes v. Lenox Hill Hosp., 226 A.D.2d 4, 18 [1st Dept 1996], lv. denied 90 N.Y.2d 829 [1997].)
It is undisputed that the subject building is owned by John Shimko, Jan Shimko, and Arusha Shimko. (Petitioners' Amended Notice of Motion, Notice of Non Renewal Exhibit A.) The nonrenewal notice described the owner who is seeking possession as a senior citizen and gave his current address as apartment 2A of the subject premises. ( Id.) The notice also stated that apartment 2A is occupied by the subject building's superintendent. ( Id.) Finally, the notice lists all owners but is signed by owner John Shimko only. ( Id.) Respondent alleges that she has lived in the subject-building for more than 20 years. (Respondent's Notice of Appearance, Verified Answer and Counterclaim, ¶ 4.) In spite of her long-term tenancy, respondent argues that she cannot determine which owner seeks possession based on the description provided in the Golub notice. (Respondent's Notice of Cross–Motion, Affidavit in Support ¶ 16.) Petitioner, John Shimko, attested without opposition from respondent that over the years respondent has seen him entering and leaving his apartment, which he shares with the superintendent. In addition, Shimko avers that he has had spoken with respondent on several occasions. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 17.) This court finds that in view of the attendant circumstances, the information included in the Golub notice sufficiently served to apprise respondent of the ground for the termination of tenancy, the existing facts to support the ground, and which owner sought the subject unit, albeit by his signature at the end of the notice. It is improbable that during a more than twenty-year tenancy, respondent never came to know the elderly man who lived in the apartment with her superintendent.
But improbable as it may be, if it were the case, this supposition still would not make the Golub notice insufficient as: Its contents meet the requirements under RSC § 2524.2(b). Accordingly, respondent's third affirmative defense is dismissed, and her cross-motion for partial summary judgment on her third affirmative defense is denied.
For the reasons discussed here and above, respondent's ninth affirmative defense is dismissed and cross-motion for partial summary judgment on her ninth affirmative defense is denied. It reiterated respondent's third, sixth, and seventh affirmative defenses.
Respondent's fourth affirmative defense alleges that she has been a tenant in the subject unit for more than 20 years. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶ 4.) Petitioners argue there is no protection based on long-term tenancy afforded by the Rent Stabilization Code. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 30.)
According to RSC § 2524.4(a)(2), the only protected class of tenant in an owner's-use holdover is the elderly or disabled. No provision in the RSC protects long-term occupants. (See Brusco v. Armstrong, 191 Misc.2d 272, 273 [App Term, 1st Dept 2001].) Accordingly, respondent's fourth affirmative defense is dismissed.
Respondent's fifth affirmative defense alleges that petitioners are acting in bad faith because there were other or prior vacancies in the building. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶ 5.) Petitioners argue that other or prior vacancies do not establish a lack of good faith. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 35.)
The existence of other vacancies in the subject building does not undermine an owner's good-faith intent to acquire a tenant's apartment. (Berlinrut v. Levanthal, 43 A.D.2d 522, 522 [1st Dept 1973].) Although the issue of John Shimko's good-faith intention to occupy the premises will be addressed at trial, respondent's fifth affirmative defense is dismissed.
Respondent's eighth affirmative defense alleges that the Golub notice is defective in that it ended her tenancy on a date that does not exist: September 31, 2009. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶ 8.) Petitioners argue that respondent is not prejudiced by the scrivener's error and that the notice should have referred to the date of her lease expiration. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 54 .)
For reasons discussed at length above, the Golub notice was sufficient to apprise respondent of date of expiration for her tenancy. The court reiterates that the appropriate test for sufficiency of notice is one of reasonableness. (Hughes, 226 A.D.2d at 18.) Under the circumstances presented, it is reasonable that respondent would look to the expiry date on her lease to resolve any confusion. Therefore, respondent's eighth affirmative defense is dismissed, and her cross-motion for partial summary judgment on her eighth affirmative defense is denied.
Respondent's tenth affirmative defense alleges that the notice of petition is jurisdictionally defective because it does not comply with RPAPL 741. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶ 10.) Petitioners argue that the notice of petition wholly complies with RPAPL 741. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 60.)
RPAPL 741 sets forth the necessary elements of a notice of petition in a summary proceeding. On reviewing the notice of petition, this court finds that the petitioners have complied with each required element. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 61, Exhibit A.) Respondent's tenth affirmative defense is dismissed.
Respondent's eleventh affirmative defense alleges the proceeding must be dismissed because there is no cause of action on which relief can be granted. (Respondent's Notice of Appearance Verified Answer and Counterclaim ¶ 11.) Petitioners argue that respondent's allegation is merely a culmination of her earlier allegations and is meritless. (Petitioners' Amended Notice of Motion, Affidavit in Support ¶ 64.)
The facts set forth in the Golub notice provide a sufficient basis for a petitioners' cause of action. (e.g. Kokot, 14 Misc.3d 1224[A], 2007 N.Y. Slip Op 50159[U], *6.) Respondent's conclusory allegation is without merit, and the instant proceeding is based on a valid cause of action on which relief can be sought. Therefore, respondent's eleventh affirmative defense is dismissed.
In light of the foregoing, petitioners' motion is granted in part, and respondent's cross-motion is denied. This proceeding is adjourned for trial on August 10, 2010.
This opinion is the court's decision and order.