Housing Court Decisions
Edited by Robert E. Sokolski, Esq. and Daphna Zekaria, Esq.
The best way to learn complex issues of landlord/tenant law is to read cases.
Let it sink in. You may have to consult Kafka, but eventually it may make sense. Although the full text of Housing Court cases are beyond our resources, NYC tenant attorneys Robert Sokolski and Daphna Zekaria provide the reader with the important factual and legal issues of selected cases.
Former editor Colleen F. McGuire, Esq. recently retired from the practice of law. Her law partner, Daphna Zekaria, Esq., is continuing with her new partner, Robert E. Sokolski, Esq. as the firm of Sokolski & Zekaria, P.C.
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Housing Court Decision Summaries
Lynch v. Dirks
Jan. 5, 2005
Appellate Court:
Trial Court:
Civil Housing Court, New York County
Trial Judge:
Hon. Jean Schneider
Type of Action or Proceeding:
Issues/Legal Principles:
Court extends recent Court of Appeals decision requiring the landlord to provide an additional five days when serving notices to cure by mail to notices of nonrenewal served by mail.
Source:
NYLJ, 19:3, Jan. 5, 2005
Referred Statutes:
ETPR (9 NYCRR) §§ 2500.13, 2504.1 (c), 2508.1 (a)
Rent Stabilization Code (9 NYCRR) §§ 2520.3; 2523.5 (a); 2524.2 (b), (c)
Rent Stabilization Law (NYC Admin. Code) § 26-501
CPLR §§ 2103, 3211, 3212
Summary:
Landlord commenced consolidated holdover proceedings against married tenants who share two duplexes in the subject building, alleging that the lower duplex was not the husband's primary residence. Additionally, the Landlord commenced an owner occupancy proceeding with respect to the upper duplex alleging that he intended to recover possession of same for his son. Landlord moved for leave to conduct discovery so as to substantiate its nonprimary residency proceeding. Tenants cross-moved for summary judgment dismissing both proceedings and in the alternative for leave to conduct discovery of the landlord with respect to the owner occupancy proceeding.
As a predicate to the commencement of both proceedings, tenants were served with notices of non-renewal (i.e. Golub notices). The landlord is obligated to serve the notice of non-renewal no less than 90 nor more than 150 days days prior to the expiration of the lease. The parties agreed that both notices were served by mail 92 days prior to the expiration of the lease. Accordingly, on its face, the notice appeared to be timely served. However, Tenant argued that service was improper by analogizing the case at bar to a recent Court of Appeals decision which imposed an additional five day requirement on the statutory guidelines with respect to notices to cure served by mail. In sum, tenant argued that the landlord failed to provide the additional five days now required by the recent Court of Appeals decision with respect to notices to cure.
Tenants argued that the Court of Appeals decision imposing an additional five day requirement on notices to cure served by mail is analogous and should be extended to notices of non-renewal. Tenants further argued that similar to a notice to cure, a notice of non-renewal imposes affirmative obligations on them, i.e. contest the matter, consult counsel, or relocate.
The Court held that the recent Court of Appeals decision is equally applicable to notices of nonrenewal insofar as they are served by mail. The Court reasoned that while a tenant receiving a ten-day notice to cure may suffer a greater disadvantage by untimely service than a tenant receiving a ninety-day notice of nonrenewal, the purpose of the recent Court of Appeals ruling was intended to clarify a grey area of service of predicate notices in general and not just notices to cure. Accordingly, the Court granted tenants' cross-motion for summary judgment.
Notes:
In a case published the same day (KSLM Columbus Apts. Inc. v Bonnemere, NYLJ, Jan. 5, 2005, at 19, col 1 [Civ Ct, NY County]), Judge McClanahan reached the opposite conclusion and declined to extend Landaverde to a Golub notice of nonrenewal.
Decision:
Cite as: Lynch v Dirks, NYLJ, Jan. 5, 2005, at 19, col 3 (Civ Ct, NY County, Schneider, J.).
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CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
MICHAEL C. LYNCH, Petitioner,
against
RAYMOND I. DIRKS & JESSY WOLFE, Respondents.
L&T INDEX NOS. 54774/04 & 54775/04
DECISION/ORDER
JEAN T. SCHNEIDER, J.H.C.
These two summary holdover proceedings were consolidated by Decision/Order dated June 25, 2004. Michael Lynch v. Raymond Dirks, Index No. 54774/04, seeks possession of the lower duplex at 50 ½ Barrow Street in the West Village on the grounds that it is not Mr. Dirks’s primary residence. Michael Lynch v. Jessy Wolfe, Index No. 54775/04, seeks possession of the upper duplex in the same building on the grounds that Mr. Lynch intends to use it as a primary residence for his son, Frank Lynch. Raymond Dirks and Jessy Wolfe are husband and wife. They claim that they occupy the upper and lower duplexes together as a single residence. Each is named as an additional respondent in the case against the other. All parties are represented by counsel.
A previous motion by the respondents challenging the court’s personal jurisdiction was denied on June 25, 2004. Before the court at this time is a motion by petitioner for discovery in the nonprimary residence proceeding and a cross motion by respondents for summary judgment dismissing both proceedings based upon ATM One, LLC v. Landaverde, 2 NY3d 472 (2004). In the alternative, respondents seek discovery in the owner’s use case.
In Landaverde, the Court of Appeals affirmed the dismissal of a breach of lease holdover proceeding governed by the Emergency Tenant Protection Regulations (“ETPR”), 9 NYCRR §§ 2500 et seq., on the grounds that the predicate notice to cure had not been served sufficiently in advance of the deadline for cure. Specifically, the Court held that when a notice to cure under the ETPR is served by mail, service is complete upon mailing, but the landlord must add an additional five days to the required service period so that the tenant is not disadvantaged by the landlord’s choice of service method.
The regulation at issue in Landaverde was 9 NYCRR § 2504.1 (c) which requires that before terminating a tenancy for wrongful acts of the tenant, a landlord must give the tenant written notice to cure. The written notice must, among other things, state “the date certain by which the tenant must cure said wrongful acts or omission, which date shall be no sooner than 10 days following the date such notice to cure is served upon the tenant.” Id. The same regulatory scheme permits notices to be served “personally or by mail.” 9 NYCRR § 2508.1 (a).
The problem, the Court said, arises from the fact that the regulation does not specify when service by mail is deemed to have been made for purposes of counting the ten day period in which the tenants has a right to cure. 2 NY3d at 477. The landlord in Landaverde argued that the ten days should start when the notice was mailed, 2 NY3d at 476, 478. The Appellate Division held that the ten days began when the notice was received by the tenant. ATM One, LLC v. Landaverde, 307 AD2d 922 (2nd Dept. 2003).[FN1] The Court of Appeals rejected both approaches.
In matters of statutory and regulatory interpretation, the Court of Appeals said, “legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors.] Generally, inquiry must be made of the spirit and purpose of the legislation.” 2 NY3d at 476-477. In the case of the Emergency Tenant Protection Act of 1974, the Court noted that the statute was enacted to address “a serious public emergency in housing across New York State as evidenced by an acute shortage of housing accommodations.” Id., citing, McKinney’s Unconsol. Laws, Section 8622, ETPA Section 2. The Court also noted that regulations are to be construed to avoid objectionable results. 2 NY3d at 477.
The Court concluded that the Legislature’s broad remedial purpose was best served, and objectionable results best avoided, by adding five days to the ten day minimum cure period when the landlord elected to serve the notice by mail, and then deeming service complete upon mailing. 2 NY3d at 477-8. The Court borrowed the concept of adding five days when service is made by mail from CPLR § 2103, although the Court recognized that the statute does not apply to service of a pre-litigation notice. The Court reasoned that borrowing this concept permits the easy determination of a date certain when service is complete and the preparation of an affidavit of service, and yet insures that the tenant whose landlord chooses to serve by mail is not disadvantaged by having a shorter period to cure. Id.
Respondents here argue that the same rule must be applied to the service of notices of intent not to renew under the Rent Stabilization Code. Both of the notices at issue here were given pursuant to 9 NYCRR § 2524.2 (c) which provides that the notice “shall be served upon the tenant . . . at least 90 and not more than 150 days prior to the expiration of the lease term.” The notice must specify the reasons why the landlord intends not to renew the lease, the facts supporting the landlord’s claim, and the date by which the tenant must move out of the apartment or else face legal proceedings. 9 NYCRR § 2524.2 (b).
Like the regulation at issue in Landaverde, the regulation at issue here permits service in person or by mail[FN2] but does not specify when service by mail is deemed to have been completed for purposes of counting the minimum 90 day notice period. Further, the purpose of the regulatory scheme at issue here is identical to the purpose of the regulations at issue in Landaverde. Compare, 9 NYCRR § 2500.13 and 9 NYCRR § 2520.3; and see, NYC Admin. Code § 26-501.
The parties agree that both of the notices in this case were mailed to the respondents on October 31, 2003, 92 days before the respondents’ leases expired. If the Landaverde rule applies, service was made late and the proceedings must be dismissed.
I hold, preliminary, that this motion, made pursuant to CPLR § 3212, is not barred by the fact that respondents made a previous motion under CPLR § 3211 challenging the court’s personal jurisdiction over them. Nothing in the CPLR bars a party from making a motion to dismiss under each provision. Petitioner also argues that respondents’ motion should be denied because respondents have not alleged that the notices were actually received less than 90 days before their leases expired. However, the Court of Appeals explicitly rejected this approach in Landaverde, holding that the date of receipt is not relevant.
I can identify nothing in the reasoning of the Court of Appeals in Landaverde that does not apply equally to the notices in this case. The purposes of the two regulatory schemes are identical. In each case the landlord may elect to deliver the notice in person or to mail it. Neither regulation addresses when service by mail is deemed to be completed. In each case, a mailed notice takes longer to reach the tenant than personal delivery, disadvantaging the tenant whose landlord elects to serve by mail. In each case adding five days to the time frame but deeming service complete upon mailing removes the disadvantages and creates a date certain when service is complete.
It is certainly true that the length of the notice period here is longer than the one considered in Landaverde. In Landaverde the tenant had only ten days to cure. Here, the tenant has 90 days to move out. The five days the Court of Appeals estimated, borrowing from § 2103, as an average period for mail to be delivered is a greater percentage of ten days than of 90 days. The tenant in Landaverde was therefore perhaps more disadvantaged by the choice of mailing as a means of service than the tenants here.
However, the degree of disadvantage does not appear to have been the central concern of the Court in Landaverde. The Court noted that the regulation it was considering was silent on the question of when service is complete. Hence the Court did not intervene to right a wrong not addressed by the regulations, namely the deprivation of an appropriate period for cure. Rather, the court was compelled to intervene to determine when service was complete because the regulations did not address that issue at all. The Court could have determined that service was complete upon mailing, without any added days, as the landlord in Landaverde argued, or that it was complete upon receipt by the tenant of the notice, as the Appellate Division held. Either of these options would have involved the same degree of judicial intervention as the solution that the Court actually chose, to hold service complete upon mailing but to add an additional five days for the mail to arrive.
The regulatory scheme at issue in this case, like the one in Landaverde, does not say when service of a notice is complete, and petitioner has suggested no persuasive reason why I should not hold that service under a virtually identical regulation, where the legislative and regulatory purpose is the same, should not be deemed to be complete at the same time and in the same fashion.
It has also been argued that a different rule should apply to the notice at issue here because the tenant here is not required to perform an affirmative act during the notice period as was the tenant in Landaverde. This is, however, not the case. Here, as respondents point out in their affidavits, the tenants must, within 90 days, decide whether or not to contest the petitioner’s case, consulting counsel in the process if they wish, and, if they elected not to contest, relocate their household to alternative housing. If they remain in their current homes after the expiration of the notice period, they may be responsible for paying their landlord’s legal fees. See, e.g., Duell v. Condon, 84 NY2d 773 (1995).
A tenant typically has no idea until he or she receives the required notice that the landlord will refuse to renew the leases. The regulation provides that 90 days is the minimum notice that a tenant must receive, although the landlord may give as much as 150 days notice. I note that until 2001, the minimum notice period was 120 days. The Rent Stabilization Code was amended at that time to reduce the minimum period significantly. Petitioner’s argument would shorten the minimum period even further.
Because I believe that the rationale of the Court of Appeals in Landaverde applies equally to the notices at issues here, the respondents’ motion for summary judgment dismissing these proceedings is granted and the proceedings are dismissed. The motion and cross motion for discovery are denied as moot.
Dated: 12/16/04
/s/__________________
J.H.C.
[FN1] The Appellate Division noted that in many other contexts, notice is deemed to have been given when it is received rather than when it is issued, citing, 98 Delancey St. Corp. v. Barocas, 82 NYS2d 802, 805, aff’d, 275 App Div 651 (1959); Lewis v. Clothes Shack, 67 Misc 2d 621 (App Term 1971); Grabino v. Howard Stores Corp., 110 Misc 2d 591, 593; Levine v. Britton, 117 NYS2d 388 (1952); NL Industries v. Paine Webber, Inc., 720 F.Supp. 293, 303 (1989). The Appellate Division also noted that in other cases, involving the statute of limitations for proceedings under Article 78 of the CPLR and the period in which to request a stay or arbitration, courts have deemed notice given when it is received. 307 AD2d at 924.
[FN2] The regulation does not actually address the manner of service but it has been read in pari materia with the regulation providing for service of an offer to renew the tenant’s lease in the same window period. That regulation, 9 NYCRR 2523.5 (a), permits service by mail or personal delivery. See, e.g., Mauro v. Thorsen, NYLJ 12/4/91, 25:5 (Civ. Ct, NY Co.).
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About TenantNet Housing Court Decisions
New York City landlord-tenant disputes generally fall into three categories:
Non-payments where the tenant has not paid rent;
Holdovers where the landlord alleges the tenant has violated the terms of the lease or otherwise has done something which is prohibited, or is still in occupancy after a lawful lease termination;
Housing Part Action or "HP Action," a case brought by the tenant asking the court to require the landlord to make repairs.
These disputes are generally heard in New York City Housing Court which is part of the New York City Civil Court system. Some cases are heard in the full Civil Court and still others are brought in Supreme Court (which is really the name of a County Court and not the highest court in New York State.) Many factors determine where a case is commenced (and beyond the scope of this brief description), but include issues of jurisdiction, the amount of money sought as relief or whether discovery is desired.
Some matters are considered Summary Proceedings (usually in Housing Court) and others are Actions. Each carries its own sets of rules. Supreme Court will also hear Article 78 Proceedings, a mechanism to challenge the decision of a city or state agency (such as DHCR).
Understanding the legal system anywhere is a tough job, but in New York it is especially complex. Many, but not all, cases are reported in the New York Law Journal, a weekday publication usually available in law offices and public libraries. Many other decisions go unreported and TenantNet invites readers to make submissions. Upon inquiry we will supply a fax number.
Certain Laws are brought up constantly in landlord/tenant cases. We can't mention every statute, but many are available online at TenantNet:
Rent Regulation
New York City Rent Stabilization Law (RSL)
New York City Rent Stabilization Code (RSC) pursuant to the RSL
New York City Rent Control (ERCA)
Emergency Tenant Protection Act (ETPA)
Covering both Regulated and Non-regulated apartments
New York State Real Property Law (RPL)
New York State Real Property Actions and Proceedings Law (RPAPL)
New York State Multiple Dwelling Law (MDL)
New York City Housing Maintenance Code
New York State Civil Practice Law and Rules (CPLR)
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Housing Court Decisions is edited by Robert E. Sokolski, Esq. and Daphna Zekaria, Esq., New York City private practice tenant attorneys who do not represent or consult with landlords. All summaries, decisions and/or other information is provided for informational purposes only and should not be construed as legal advice or as creating a lawyer-client relationship with anyone. Also see the TenantNet general disclaimer. Although tenants have a right to represent themselves in court pro se, it is always advisable to consult with an attorney. Mr. Sokolski and Ms. Zekaria are available for legal consultation and/or representation by calling their office at 212-571-4080 or 212-571-4090 for an appointment. They are not available for online consultation.
TenantNet wishes to thank tenant attorney Colleen McGuire who edited Housing Court Decisions from 1996-2002.
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