Opinion
LT-000231-19NA
06-21-2019
SINCLAIR SECURITIES, LLC, Petitioner(s), v. Karla KUDATSKY, "John Doe," "Jane Doe," Respondent(s).
Moritt Hock & Hamroff, LLP, attorneys for Respondent Rosenberg Fortuna & Laitman, LLP, attorneys for Petitioner
Moritt Hock & Hamroff, LLP, attorneys for Respondent
Rosenberg Fortuna & Laitman, LLP, attorneys for Petitioner
Scott Fairgrieve, J.
The following named papers numbered 1 to 5 submitted on Respondent's Motion for Summary Judgment and Other Relief,
and Petitioner's Motion for Leave to Conduct Discovery on May 24, 2019
papers numbered
Respondent's Motion for Summary Judgment & Other Relief 1
Petitioner's Opposition to Motion for Summary Judgment 2
Respondent's Reply Papers to Motion for Summary Judgment 3
Petitioner's Motion for Leave to Conduct Discovery 4
Respondent's Opposition to Motion for Leave to Conduct Discovery 5
Issues Presented
Respondent moves for summary judgment, which is opposed by Petitioner. Petitioner moves for leave to conduct discovery, which is opposed by Respondent.
Petitioner commenced this summary holdover proceeding against Respondent Karla Kudatsky concerning the premises located at 140 S. Middle Neck Road, Apt. 2G, Great Neck, New York. The basis of the proceeding is that Respondent is occupying the premises as her nonprimary residence, in violation of the Emergency Tenant Protection Act of 1974 (specifically, 9 NYCRR Sections 2504.5(d) and 2508.1(a).
The Petition asserts that Respondent occupies the apartment as a "non-purchasing tenant" pursuant to General Business Law Section 352-eeee. Paragraph 3 of the Petition alleges that Respondent became a tenant as follows:
"3. Respondent-Tenant, Karla Kudatsky, is the subtenant in the Premises pursuant to sub-lease agreement entered into in 1984, for a term commencing October 1, 1984 and ending September 30, 1986 (the "Lease "), as extended by sixteen (16) two (2) year lease extention agreements, the last of which provides for a term commencing October 1, 2016 and ending September 30, 2018. Petitioner has been the sublandlord of the Premises since October 1, 2008, and all such lease extension agreements entered into by Respondent-Tenant for the Premises have been with Petitioner since such time."
Paragraphs 8 and 12 of the Petition detail the Notices of Termination served upon Respondent.
"8. On or about July 30, 2018, Petitioner mailed Respondent correspondence titled ‘Combined Notice of Termination and Notice of Intention to Commence Court Action’ pursuant to which Petitioner advised Respondent that: a) the Petitioner would not be renewing the Lease beyond its expiration date of September 30, 2018; b) that Respondent was required to quit, vacate, and surrender possession of the Premises on or before September 30, 2018; and c) that Petitioner intended to commence an action or proceeding pursuant to Section 9 NYCRR §§ 2504.5(d) and 2508.1(a) seeking to recover possession of the Premises on the ground that the Premises are not occupied by Respondent, not including subtenants or occupants, as her primary residence. A copy of said letter is annexed hereto as Exhibit ‘A’ ."
"12. On or about November 7, 2018, Petitioner sent by certified mail to Respondent additional correspondence also titled ‘Combined Notice of Termination and Notice of Intention to Commence Court Action’ pursuant to which Petitioner advised Respondent that: a) the Respondent's tenancy is terminated effective December 31, 2018; b) that Respondent was required to quit, vacate, and surrender possession of the Premises on or before December 31, 2018; and c) that Petitioner intended to commence an action or proceeding pursuant to Section 9 NYCRR §§ 2504.5(d) and 2508.1(a) seeking to recover possession of the Premises on the ground that the Premises are not occupied by Respondent, not including subtenants or occupants, as her primary residence. A copy of said letter is annexed hereto as Exhibit ‘B’ ."
Paragraph 17 of the Petition states that Respondent's primary address is located at 801 Tiller Drive, Forked River, New Jersey 08731.
The Combined Notice of Termination and Notice of Intention to Commence Court Action, dated July 30, 2018 states that the termination date is September 30, 2018, because the apartment is not occupied as her Primary Residence. The Notice states that the lease will not be renewed when her current lease expires on September 30, 2018.
The July 30, 2018 Termination Notice is signed by Petitioner's attorney, David I. Rosenberg, and Allen Prince, Manager of Sinclair Securities, LLC (Landlord/Owner).
The second Termination Notice, dated November 7, 2018, is signed by attorney Rosenberg and by Allen Prince, Manager of Sinclair Securities, LLC (Landlord/Owner). The Notice asserts that Respondent's primary residence is at 801 Tiller Drive, Forked River, New Jersey 08731. The Notice demands that Respondent vacate by December 31, 2018. Failure to vacate will result in summary proceedings being commenced pursuant to 9 NYCRR Sections 2504.4(d) and 2508.1(a).
The Verified Answer with Counterclaims, dated February 21, 2019, denies the allegations of the Petition except admits that: 1) Petitioner rented the apartment to Respondent for residential purposes and she remains in possession; 2) Sinclair accepted Respondent's rental payments for October and November 2018; and, 3) the premises is rent stabilized and subject to the ETPA.
The Verified Answer contains 18 affirmative defenses.
(1) Failure to state cause of action;
(2) Lack of personal jurisdiction due to improper service of the Termination Notice, dated July 30, 2018;
(3) Improper service of the second Termination Notice dated November 7, 2018;
(4) Improper service of the Notice of Petition and Petition because the process server allegedly attempted service as follows:
"29. According to the Affidavit of Service, one attempt at personal service was purportedly made on Saturday, January 19, 2019 at 10:07 a.m. An attempt at personal service was purportedly made on Tuesday, January 22, 2019 at 7:49 a.m. Then, an attempt at personal service was purportedly made on Thursday, January 24, 2019 at 6:51 p.m."
(5) The Fifth Affirmative Defense alleges that the July 2018 Notice is defective because the Notice fails to provide enough particularity to the allegations of nonprimary residence claim.
(6) The Sixth Affirmative Defense states that the July 30, 2018 Notice is defective because it is alleged in the Notice that it was sent at least 90 days, but not more than 150 days from the date of service of the July 30, 2018 Notice on which the Respondent's term expires. The Respondent states that this time period is patently defective because the Notice was purportedly mailed 60 days before expiration of the lease.
Respondent also claims that Petitioner is not the Landlord/Owner as alleged in the Notice.
(7) The Seventh Affirmative Defense states that the July 2018 Notice is also defective because the sections of the ETPA allegedly violated by Respondent are not set forth.
(8) The Eighth Affirmative Defense asserts that the July 2018 Notice is further defective because the Notice cannot be signed by Allen Prince, as manager, on behalf of the Petitioner. It is further contended that the attorney cannot sign the Notice.
(9) The Ninth Affirmative Defense attacks the November 2018 Termination Notice because it fails to recite details to sustain the Notice's validity, including time periods of nonprimary occupancy. Respondent asserts that the 2018 Notice is confusing because it does not state that it supersedes the July 2018 Notice.
(10) The Tenth Affirmative Defense concludes that the November 2018 Notice is defective because Petitioner is not the owner of the premises which is owned by another entity.
(11) The Eleventh Affirmative Defense claims that the November 2018 Notice is defective because it fails to specify the ETPA sections relied upon.
(12) The Twelfth Affirmative Defense asserts the November 2018 Notice is defective because it is improperly signed by Allen Prince as manager for Petitioner as the Landlord/Owner. Also, the attorney cannot properly sign the Termination Notice.
(13) The Thirteenth Affirmative Defense states that Petitioner admits that it created a new tenancy with Respondent by accepting the rent for the months of October 2018, November 2018, December 2018, and for January 2019. Therefore, Petitioner was required to provide Respondent with a stabilized renewal lease.
(14) The Fourteenth Affirmative Defense claims that Petitioner failed to give Respondent the notice required by ETPR Section 2503.5, i.e., - notice served not more than 120 days and not less than 90 days prior to the end of the lease term.
(15) The Fifteenth Affirmative Defense contends that the Petitioner is precluded from commencing this summary proceeding pursuant to ETPA Section 2505.7(e) because a nonprimary proceeding cannot be maintained prior to the expiration of Respondent's renewal lease. Respondent contends that a new tenancy was created after September 30, 2018, and therefore Respondent is entitled to a new stabilized renewal lease.
(16) The Sixteenth Affirmative Defense contends that the Petition is fatally defective because Petitioner failed to comply with RPAPL Section 741. The Petition does not incorporate the facts of the two Termination Notices and it is unclear which Termination Notice is being relied upon. No details are set forth to support grounds for eviction. Also, Petitioner states in the Petition that Petitioner is the proprietary lessee and sublandlord, while elsewhere in the Petition, Petitioner represents that it is owner and landlord.
(17) The Seventeenth Affirmative Defense states that no proof is shown that the "DHCR" was served with either the July 2018 or November 2018 Notices.
(18) The Eighteenth Affirmative Defense states that dismissal is necessary because Respondent's name was misspelled.
(19) The Nineteenth Affirmative Defense states Petitioner is not entitled to legal fees, etc., because Petitioner is not the prevailing party.
The First Counterclaim seeks an order directing Petitioner to offer Respondent a renewal lease in accord with ETPA Section 10(a) and ETPR Section 2503.5.
The Second Counterclaim is based upon the warranty of habitability. Respondent seeks an order for an abatement and an order directing Petitioner to correct the conditions and damages.
The Third Counterclaim seeks legal fees based upon RPL Section 234.
Respondent supports her motion for summary judgment based upon her affidavit, sworn to March 7, 2019.
Respondent avers that Petitioner Sinclair Securities, LLC is the Proprietary Lessee and shareholder of the shares allocated to Apt. 2G. Petitioner is claimed to be in a course of conduct to harass its remaining rent regulated tenants so it can sell their units, including Respondent's unit, for a higher price.
Respondent has occupied 2G since 1981. In 1988 Respondent was provided a stabilized lease that has been renewed continuously with the last lease being dated July 1, 2016.
The 1988 Lease states that the owner is Milton Prince, c/o Prince Enterprises of NY.
The July 10, 2016 ETPA Renewal Lease Form lists Sinclair Securities, LLC as the owner. The Lease renewed for two years and expired September 30, 2018.
Respondent contends that Petitioner was legally required to notify her of the nonrenewal no more than 120 days and not less than 90 days prior to the end of her current lease term. She also contends that Petitioner was required to renew her lease.
Respondent writes that her brother lived in New Jersey and she took care of him. The brother died in June of 2018.
The Respondent contends that the July 2018 Termination Notice is defective. The grounds of defects are set forth in the affirmative defenses, numbered 5-8, outlined herein. Respondent notes that no factual basis is provided for any time period where she lived elsewhere.
No repairs have been completed at her apartment except for installation of smoke and carbon monoxide detectors.
Respondent avers that she received the November 2018 Termination Notice terminating her tenancy effective December 31, 2018. The Respondent attacks the November 2018 Termination Notice on the grounds set forth in the affirmative defenses, numbered 9-12, outlined herein.
Respondent states that she paid rent for August 2018, September 2018, October 2018, November 2018, December 2018, and January 2019. She believed that her tenancy was going to continue.
Respondent attacks the Petition because the July 30 and November 7 Termination Notices were merely attached to the Petition, but not incorporated into the allegations of the Petition. Furthermore, Respondent states no facts are alleged, nor any reference made to any ETPA Sections. Respondent also avers that the time delay in starting this summary proceeding and the acceptance of rent created the impression that her tenancy was going to be continued. Respondent states Petitioner is required to provide her a renewal lease pursuant to ETPR Section 2503.5(c). Also, she contends that summary proceedings cannot be maintained until after Petitioner extends the lease and the extension expires (ETPR 2705[e]).
Respondent attacks service of the Notice of Petition and Petition, claiming that service failed to comply with RPAPL Section 735. It is claimed that attempted service on Saturday, January 19, 2019 at 10:07 a.m., Tuesday, January 22, 2019 at 7:49 a.m., and Thursday, January 24, 2019 at 6:51 p.m. is insufficient.
Respondent claims breach of warranty because Petitioner failed to make the following repairs:
"68. With regard to the repairs needed in the Premises, Petitioner breached the warranty of habitability by failing to make repairs in accordance with applicable law. The following conditions continue to exist in the Premises:
a. Painting and plastering needed throughout entire apartment;
b. Kitchen cabinets needs are peeling - need to be painted or replaced;
c. Kitchen exhaust fan not working;
d. Missing GFI outlets in kitchen, living room and bedroom;
e. Missing Refrigerator - need a refrigerator;
f. Missing Stove - need a stove;
g. Repair holes in walls, floor, and window sills in kitchen;
h. Bathroom tiles need to be grouted;
I. Shower faucets are leaking;
j. Bathroom tub, sink, and cabinets need to be repaired or replaced due to damages caused by water leaks;
k. Various windows are not operable in bedroom and living room; and,
l. Outlets in bedroom, living room, and entranceway are not working properly."
Respondent's attorney, Jennifer Ecker, Esq., submits her Affirmation in Support of the Motion for Summary Judgment, dated March 7, 2019.
Jennifer Ecker states no jurisdiction exists due to non compliance with RPAPL Section 735 concerning service of the Notice of Petition and Petition.
Jennifer Ecker avers that Respondent waived its right to bring the summary proceeding because Respondent created a new tenancy by accepting rent after the termination date of September 30, 2018 and failing to timely commence its summary proceeding after September 30, 2018.
Petitioner's acceptance of the payments from Respondent after September 30, 2018, and its delay in commencing the proceeding "constituted an implied continuance of Respondent's tenancy, subject to the same conditions and terms as the original Lease between Petitioner and Respondent."
Jennifer Ecker writes that the Predicate Notices and Petition are fatally defective because Petitioner failed to specify the sections of the law relied upon.
Jennifer Ecker asserts that the Predicate Notices and Petition are defective because the documents fail to recite facts to substantiate Petitioner's nonprimary residence claim.
Respondent's counsel posits that no time periods are set forth when Respondent resided elsewhere, and the periods that she was not seen at the premises.
Additionally, attorney Ecker maintains that the July 30, 2018 Notice is defective because the language "at least 90 days but not more than 150 days" didn't make sense when the termination date was set at September 30, 2018.
She also complains that the November 7, 2018 Notice did not reference either of the two prior Notices, and did not state that it superseded and replaced the two prior Notices.
Jennifer Ecker claims that the Predicate Notices of July 30, 2018 and November 7, 2018 are defective because they were signed by David T. Rosenberg, Esq., attorney for the landlord/owner and by Allen Prince in his purported capacity as Temporary Assistant Secretary of the landlord/owner. It is asserted that "neither are authorized agents of Petitioner and are permitted to terminate Respondent's Lease."
Jennifer Ecker states that since a new tenancy was created after September 30, 2018, a new stabilized lease had to be offered to Respondent pursuant to EPTA Section 10(a) and ETPR Section 2503.5(a).
Jennifer Ecker alleges that Petitioner failed to comply with ETPR Section 2503.5(a), i.e., - no notice served more than 120 days and not less than 90 days prior to the end of the tenant's lease term. ETPR Section 2503.5(a) is not at odds with ETPA Section 5(11).
In opposition, Petitioner submits the Affirmation of attorney Brett Zinner, dated March 27, 2019 and the Affidavits of Gordon Ditzel, Executive Manager of Petitioner, and Oscar Castellon, independent contractor.
Brett Zinner states in his Affirmation that the Deed (Exhibit A) demonstrates that Respondent has her primary residence at 801 Tiller Avenue, Forked River, New Jersey. The Mortgage document for the said property, dated July 6, 2017, provides that Respondent borrowed $613,750.00 for the purchase of the property. Page 7 of 15 from the Mortgage (initialed by Respondent) provides:
"6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control."
It is urged that the above demonstrates that Respondent is not occupying the subject premises as her primary residence and thus, pursuant to ETPR Section 2504.4(d), this constitutes a defense to Respondent's counterclaim seeking a lease renewal. This is also claimed to provide grounds for further discovery of "additional bank affidavits and other documents in Respondent's sole possession will provide further evidence of her nonprimary residency." Petitioner raises the spector of bank fraud by Respondent concerning her residency.
Brett Zinner states that conspicuous service is adequate and that the assertion of counterclaims waived the defense of lack of personal jurisdiction.
Brett Zinner contends that the Lease was terminated September 30, 2018 by its own terms and that a renewal lease was not provided because of Respondent's nonprimary status pursuant to EPTR Section 2504.4(d). He insists that only a month-to-month tenancy was created by the acceptance of the monthly rent pursuant to RPL Section 232-c.
Brett Zinner argues that the November 7, 2018 Notice terminates Respondent's tenancy as of December 31, 2018. No check was deposited for January 2019 prior to the commencement of this proceeding on January 10, 2019. Petitioner contends that a January 2019 check received from Respondent was returned on January 9, 2019. However, a claimed replacement check for January 2019 was received from Respondent and deposited January 14, 2019 after commencement of this proceeding.
Brett Zinner posits that none of the alleged defective conditions concerning the apartment (except for the refrigerator/stove) were raised prior to the filing of her Answer herein. The Respondent's stove and refrigerator were removed in January of 2018 by Petitioner at Respondent's request. Petitioner states Respondent refused to allow for the installation of replacements because "she wanted to purchase new appliances at her own expense."
Brett Zinner insists that all required Notices and Petition were adequate. The two July Notices did not invalidate the November Termination Notice. Petitioner contends that the July Notice puts Respondent on notice that the Lease was not going to be renewed.
Petitioner avers that the November Notice is legal because it notifies that the Lease is terminated as of December 31, 2018 because the Great Neck residence is not her primary residence. It is asserted that 801 Tiller Drive, Forked River, New Jersey is listed as Respondent's primary residence, and that discovery will allow Petitioner to complete the picture on the issue of nonprimary residence.
Furthermore, Petitioner points out that the November 7, 2018 Notice directly cites to 9 NYCRR Section 2504.4(d), which is the section allowing a landlord to recover possession based upon nonprimary residence.
Brett Zinner states the following about the signatures on the Notices:
"22. There are a few additional minor hyper-technical arguments offered by Respondent, none of which are jurisdictional in nature or fatal to the notices and petition. Respondent's counsel misrepresents that both the July 30, 2018 Notice and the November 7, 2018 Notice were signed by Allen Prince as ‘Temporary Assistant Secretary ’ (See Ecker Affirmation at ¶38 and Memo of Law at p. 11). However, a review of the said notices reveal they were signed by Allan Prince in his capacity as ‘Manager ’ of Petitioner. Counsel further suggests, without offering any authority, that a manager of an LLC is unauthorized to sign the notices. This is simply not the case.
23. Admittedly, the July 30, 2018 Notice and the November 7, 2018 Notice do inadvertently identify Petitioner as an ‘Owner’, although Petitioner is a proprietary lessee. However, the Petition clearly identifies that Petitioner is a proprietary lessee and sublandlord. See Petition at ¶3. This inadvertent error confused no one, as even Respondent's affidavit evidences her understanding that the premises are part of a cooperative corporation and Petitioner is a proprietary lessee. See Kudatzky Affidavit at ¶27."
The Affidavit of Gordon Ditzel, Executive Manager of Petitioner, states that the Respondent's check for January, 2019 rent was returned via his Letter of January 9, 2019. Respondent allegedly sent a replacement check for January 2019 which was deposited January 14, 2019, after commencement of this proceeding.
Petitioner states that only the stove and refrigerator were raised as issues by Respondent prior to commencing the condition of the apartment. It is contended that Respondent had Petitioner remove the stove and refrigerator but refused the replacements.
The independent contractor, Oscar Castellon, states in his Affidavit that he removed the stove and refrigerator but Respondent refused replacements. Respondent allegedly told Oscar Castellon that she would buy new items.
Respondent submits her Reply Affidavit, sworn to April 12, 2019. Respondent repeats her claims that she is entitled to a new lease. Also, Respondent urges that the proceeding is premature because this summary proceeding cannot be commenced until after the new lease term expires. Respondent avers that Petitioner's accepting rent for October, November and December of 2018, and failure to commence timely summary proceedings constitutes a waiver of the right to bring this summary proceeding.
Petitioner moves for leave to conduct discovery on the issue of Respondent not occupying her apartment as her primary residence as required by ETPR (9 NYCRR) Section 2504.4(d). Petitioner has served the Demand for Documents and Information, dated March 8, 2019 to ascertain documents and information to prove it's claim of nonprimary residence.
In opposition, Respondent states that no grounds exist to allow discovery. She avers that the residence at 801 Tiller Drive, Forked River, New Jersey is a beach/vacation home. Respondent maintains that she took care of her brother in New Jersey until his passing in June, 2018. Respondent takes issue with various demands of the Demand for Documents and Information which will be discussed later in this decision.
Sufficiency of Service Pursuant to RPAPL Section 735
The facts demonstrate that the process server attempted service on Saturday, January 19, 2019 at 10:07 a.m. The second attempt was on Tuesday, January 22, 2019 at 7:49 a.m., and the third attempt was on Thursday, January 24, 2019 at 6:51 p.m. The Affidavit of Service states that Respondent was also served by first class mail and certified mail on January 25, 2019. This court rules that Respondent was properly served by nail and mail service under the reasonable application standard of RPAPL Section 735. In Martine Associates LLC v. Minck , 5 Misc 3d 61, 785 NYS2d 648 (Sup Ct, App Term 9th & 10th Jud Dists), the Court stated that the following satisfies the reasonable standard pursuant to RPAPL Section 735 :
"As a rule, at least two attempts at personal service, one during normal working hours and one attempt when a person working normal hours could reasonably be expected to be home, are required to satisfy the ‘reasonable application’ standard ( RPAPL 735[1] ; see Eight Assoc. v. Hynes , 102 AD2d 746, 748, 476 N.Y.S.2d 881 [1984] ; affd. 65 NY2d 739, 740, 492 N.Y.S.2d 15, 481 N.E.2d 555 [1985] ; Hynes v. Buchbinder , 147 AD2d 371, 537 N.Y.S.2d 537 [1989] )."
The above standard has been satisfied by the service completed in the case at bar.
In Parkchester Apartments Co. v. Hawkins , 111 Misc 2d 896, 447 NYS2d 194 (Sup Ct, App Term 1st Dept [1981] ) the Court sustained service pursuant to RPAPL Section 735 where service was attempted at approximately 7:35 a.m., followed by the required mailings. In sustaining service, the Appellate Term held that:
" RPAPL section 735 permits nail and mail service where admittance to the premises cannot be obtained ‘upon reasonable application.’ The process server's efforts are not to be judged by the ‘due diligence’ standard for service of process in ordinary actions imposed by CPLR 308(4). ‘A lower grade of effort’ is contemplated in exacting ‘reasonable application’ to the extent that the process server ‘may ring once (or twice if so moved) and if such mild, lawful efforts come to naught, he may proceed with posting and mailing’ (Coulston v. JKL Founding Corp. , N.Y.L.J., March 20, 1974, p. 17, col. 7, as quoted in Hospitality Enterprises Inc. v. Fuego Restaurant Corp. , N.Y.L.J., June 5, 1980, p. 11, col. 4 [AT 1] ).
The primary purpose of summary proceedings is to enable the landlord to regain possession quickly and inexpensively. While more is required than a mere recital authorizing nail and mail service, where the testimony of the process server established that he was on the premises at an hour when he could reasonably expect the tenant to be at home, and rang the bell, the requirements of section 735 have been met (cf. Palumbo v. Est. of Clark , 94 Misc 2d 1, 403 N.Y.S.2d 874 ; see also Velazquez v. Thompson , 2nd Cir., 451 F.2d 202 ).
The court's decision invalidated the service on the narrow ground that the process server had not used the building intercom system before proceeding to the tenant's apartment. Requiring this specific act to spell out reasonable application exceeds the statutory standards of service under RPAPL section 735, as they have been construed by the court. The court below, in sustaining the traverse, imposed an essentially subjective standard of ‘reasonable application’ which finds no support in RPAPL section 735."
Based upon the above, there is no merit to Respondent's lack of jurisdiction argument. Thus, service is sustained in the case at bar.
Was Petitioner Required to Serve a Timely Golub Notice (120/90 Notice of Nonrenewal) Upon Respondent?
Petitioner served the Notice of Intention to Commence Court Action, dated July 2, 2018 to terminate Respondent's tenancy as of September 30, 2018. The ground set forth for nonrenewal of the Lease is Respondent's allegedly living at 801 Tiller Drive, Forked River, New Jersey.
The Notice specifically states the following:
"PLEASE TAKE FURTHER NOTICE , that this NOTICE is served upon you pursuant to Section 9 NYCRR §§ 2504.4(d) and 2508.1(a) and other applicable provisions of law.
PLEASE TAKE FURTHER NOTICE , that you are hereby required to quit, vacate and surrender possession of the Apartment involved to the Landlord/Owner on or before September 30, 2018, that being at least ninety (90), but not more than one hundred fifty (150) days, from the date of service of this NOTICE, as well as the day on which your term expires. Further and unless you voluntarily vacate the Apartment, as aforesaid, the Landlord/Owner will commence summary proceedings under the applicable statutes to remove you from said Apartment for the holding over after the expiration of your term in the District Court of the County of Nassau, First District, Hempstead Part, and will demand in said proceeding the fair market value of your use and occupancy of the Apartment during such holding over, together with an award of its reasonable attorney's fees.
PLEASE TAKE FURTHER NOTICE , that on or after September 30, 2018, that being at least THIRTY (30) DAYS following service of this NOTICE upon you, the Landlord/Owner intends to commence an action or proceeding pursuant to Section 9 NYCRR §§ 2504.4(d) and 2508.1(a), seeking to recover possession of the Apartment involved in a court of competent jurisdiction in the State of New York on the grounds the Apartment involved are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence."
The July 2 Notice is signed by Attorney David I. Rosenberg (attorney for Landlord/Owner) and Sinclair Securities, LLC (Landlord/Owner) by Brett D. Zinner, Temporary Assistant Secretary.
In response to the July 2 Notice, Respondent's attorney Gregory G. Calabro sent the correspondence dated July 19, 2018, attacking the Notice. Respondent's attorney states that the Notice fails to set forth sufficient facts for an eviction.
The correspondence sets forth that the Notice is also defective because:
"Second, in order for a predicate notice to be effective it must be signed by an authorized individual. Seigel v. Kentucky Fried Chicken of Long Island, Inc. , 108 AD2d 203, 488 N.Y.S. 2d 744 (2nd Dept. 1985). Your Notice is signed by one of the partners of your law firm as, ‘Temporary Assistant Secretary’. To be kind, the purported authorized signature is a farce."
Apparently, in response to the said Letter, Petitioner had the Combined Notice of Termination and Notice of Intention to Commence Court Action, dated July 30, 2018, served upon Respondent. The July 2 Notice and July 30 Notice are identical, except the July 30 Notice is signed by Allen Prince as Manager of Petitioner, instead of Brett D. Zinner as Temporary Assistant Secretary.
The Notice of Petition and Petition, dated January 7, 2019, incorporate the July 30, 2018 Notice as follows:
"8. On or about July 30, 2018, Petitioner mailed Respondent correspondence titled ‘Combined Notice of Termination and Notice of Intention to Commence Court Action’ pursuant to which Petitioner advised Respondent that: a) the Petitioner would not be renewing the Lease beyond its expiration date of September 30, 2018; b) that Respondent was required to quit, vacate, and surrender possession of the Premises on or before September 30, 2018; and c) that Petitioner intended to commence an action or proceeding pursuant to Section 9 NYCRR §§ 2504.5(d) and 2508.1(a) seeking to recover possession of the Premises on the ground that the Premises are not occupied by Respondent, not including subtenants or occupants, as her primary residence. A copy of said letter is annexed hereto as Exhibit ‘A’ .
9. Petitioner remained in possession after the expiration of the Lease termination date of September 30, 2018."
The July 2 Notice was not relied upon, or cited in the Petition. Thus, the July 2 Notice was superseded by the July 30 Notice.
Respondent attacks the July 30 Notice as insufficient pursuant to ETPR Section 2503.5(a) as follows:
"POINT VIII
PROCEEDING MUST BE DISMISSED AS PETITIONER FAILED TO COMPLY WITH ETPR § 2503.5(a)
The Petition must also be dismissed as a matter of law because Petitioner failed to comply with ETPR § 2503.5(a). Petitioner failed to provide Respondent with a notice of the termination of the parties' lease within the 90-120 day time period set forth in ETPR § 2503.5(a). ETPR § 2503.5(a) provides in pertinent part, ‘every landlord shall notify the tenant in occupancy not more than 120 days and not less than 90 days prior to the end of the tenant's lease term, by certified mail, of such termination of the lease term...’ [Emphasis added] The mandatory language of the ETPR is clear and unequivocal.
EPTA § 5(11) is not inconsistent with the notice provision set forth in ETPR § 2503.5(a). See Crow v. 83rd St. Assocs. , 68 NY2d 796, 498 N.E.2d 422, 506 N.Y.S.2d 858 (1986). They are separate and distinct notices that are respectively mandated by the ETPA and the ETPR. There is nothing contained in ETPA or the ETPR that invalidates the landlord's obligation to timely provide each requisite notice to the Respondent.
In the case at bar, it is undisputed that Petitioner was aware that it was required to send a written notice of the termination of the parties' Lease by certified mail to Respondent, not more than 120 days and not less than 90 days prior to the end of Respondent's lease term. This is evidenced in the third paragraph of Petitioner's July 30, 2018 Notice where Petitioner referenced a window period in which Petitioner was required to notify Respondent of the termination date of the parties' lease. (See Exhibit ‘A’ ).
Consequently, as Petitioner failed to comply with ETPR § 2503.5(a) and notify Respondent of the termination date of the parties' lease not more than 120 days and not less than 90 days prior to the end of Respondent's September 30, 2018 lease term, the Petition must be dismissed as a matter of law and Respondent be provided with a lease renewal in accordance with ETPA § 10(a) and ETPR § 2505(a)(b) and (c)."
Petitioner counters that the 90-120 day's notice requirements do not apply to apartments covered by the ETPR in Nassau County:
"Although Petition [sic] had sent prior notices in July 2018 (i.e. months before the September 30, 2018 lease expiration), none of those were required as a predicate to commence the action. Indeed, while there is a requirement to serve a notice between 90-150 days before lease expiration under the Rent Stabilization Code (9 NYCRR) § 2524.2(c)(2) for actions based on nonprimary residency, there is no such corollary provision in the ETPR and thus does not apply to Nassau County. Moreover, the requirement to send a notice to tenant between 90-120 days prior to lease expiration under ETPR § 2503.5(a) concerning lease renewals does not apply because, as explained above, ETPR § 2504.4(d) expressly vitiates the renewal obligations in the event of a nonprimary residency. In any event, Petitioner provided a notice of termination dated July 2, 2018 (attached to Respondent's motion at Ex. E)."
In G. Warhit Real Estate Inc. v. Krauss , 131 Misc 2d 429, 502 NYS2d 899 (App Term, 9th & 10th Jud Dists [1985] ), the Court held in nonprimary summary proceedings the Golub Notice is not required for apartments covered by the ETPA.
In Landlord and Tenant Practice in New York , Finkelstein & Ferrarra, 2019 Edition, the treatise states:
"§ 15:137. Notice of nonrenewal--Under ETPR--Nonprimary residence
Summary
A landlord may properly refuse to renew the lease if the tenant does not occupy the premises as a ‘primary’ residence. The landlord is required to serve the tenant with at least thirty-days' written notice of an intention to commence a proceeding on such ground. Within seven days after the notice is served on the tenant, an exact copy of the notice, together with an affidavit of service, must be filed with the DHCR. It is unsettled whether the landlord must also serve a ‘Golub ’ notice during the ninety to one-hundred-twenty day ‘window period’ prior to the expiration of the tenant's lease (at which time a renewal lease would ordinarily be required to be offered). While neither the ETPA nor the ETPR requires the landlord to serve such a notice, some courts have suggested that it is nevertheless necessary.
[fn] Crow v. 83rd Street Associates, 68 NY2d 796, 506 N.Y.S.2d 858, 498 N.E.2d 422 (1986) (‘Appellate Term and nisi prius decisions stating that the 1983 amendment eliminates the section 60 notice requirement should not be followed’); but see G. Warhit Real Estate, Inc. v. Krauss, 127 Misc 2d 845, 487 N.Y.S.2d 484 (Dist. Ct. 1985) , order aff'd, 131 Misc 2d 429, 502 N.Y.S.2d 899 (App. Term 1985) (finding ‘Golub ’ notice unnecessary under ETPA)."
In Crow v. 83rd Street Associates , 68 NY2d 796, 506 NYS2d 858 (1986), the Court of Appeals declined to follow the holding of Warhit Real Estate v. Krauss , concerning the need for a Golub notice. The Court held that a landlord still must serve the tenant with notice of nonrenewal of a lease not more than 150 days and not less than 120 days prior to the expiration date:
"The two notice provisions are not inconsistent. Section 41 of the Omnibus Housing Act, in amending the New York City Rent Stabilization Law, therefore, does not effect an implied repeal of the unrelated and different notice requirement of section 60 of the Rent Stabilization Code (see , Matter of Board of Educ. v. Allen , 6 NY2d 127, 141-142 ; McKinney's Cons Laws of NY, Book 1, Statutes § 391). Because the landlord failed to serve notice pursuant to section 60 of the Code, the tenant is entitled to a renewal lease by operation of sections 50 and 54(E) of the Code (see , Elwick Ltd. v. Howard , 65 NY2d 1006 ; Golub v. Frank , 65 NY2d 900 ). Appellate Term and nisi prius decisions stating that the 1983 amendment eliminates the section 60 notice requirement (see, e.g. , Continental Towners v. Jahss , NYLJ, Oct. 10, 1985, p 11, col 2 [App Term, 1st Dept]; Warhit Real Estate v. Krauss , 131 Misc 2d 429 ; Seagrave Establishment v. Goldberg , 130 Misc 2d 467 ) should not be followed."
The First Department, in Park House Partners, Ltd. v. DeIrazabal , 140 AD2d 84, 532 NYS2d 249, 252 (1988), stated that 150/90 notice is required in ETPA nonprimary residence cases, citing Crow :
"It may be noted that by our affirmance in Sutton supra, we expressly recognized that an action for a declaratory adjudication of nonprimary residence was in effect an ‘action or proceeding * * * to recover possession’ thus calling into play the notice provisions of section 5(a)(11) of the Emergency Tenant Protection Act of 1974 (L. 1974 ch. 576, § 4 as amd.) (codified at Unconsolidated Laws § 8625[a][11], and the New York City Administrative Code § YY51-3.0(a)(1)(f). Having so characterized nonprimary residence declaratory judgment actions, there exists no principled basis for exempting them from the nonrenewal notice provisions of the Rent Stabilization Code, which now go under the general heading of ‘termination notices’ (see current Code § 2524.2 ). This is particularly true after the Court of Appeals decision in Crow which held explicitly that the above cited amendments to the Emergency Tenant Protection Act did not effect the repeal of the Code's ‘window period’ notice provisions. ( Crow , supra at 797, 506 N.Y.S.2d 858, 498 N.E.2d 422 )."
Based upon the foregoing, this court dismisses the instant proceeding, due to Petitioner's failure to timely serve a 120/90 notice. The July 2 Notice was superseded by the July 30 Notice, relied upon by Petitioner in the Petition. The July 30 Notice terminated the Lease effective September 30, 2018. The July 30 Notice is untimely and void. The Respondent is entitled to a renewal due to the failure of Petitioner to timely serve the 150/90 day nonrenewal notice. See , Crow, supra .
Conclusion
1. Personal jurisdiction was obtained over Respondent.
2. This proceeding is dismissed based upon the failure of Petitioner to timely serve a 150/90 day notice, which is required in nonprimary residence cases. Respondent is entitled to a renewal Lease.
3. This court declines to grant any other relief. Respondent may bring a separate plenary action concerning any other claims.
4. The motion for discovery is denied as moot.
So Ordered: