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Landaverde Rule not applied to Golub Notice

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Landaverde Rule not applied to Golub Notice

Postby NYHawk » Tue Feb 08, 2005 11:26 pm

Gnann v. Crawford, NYLJ, Jan, 5, 2005, page ____, col. _____ (N.Y.C. Civ. Ct. N.Y. Co. Judge Lai)

Petitioner has commenced these holdover proceedings seeking possession of apartments 1, 3, and 4 at 127 East 10th Street, New York, New York for his own use pursuant to 9 N.Y.C.R.R. Section 2524.4(a). On or about October 31, 2003, petitioner served combined notices of nonrenewal and termination notices upon respondent by mail. Respondent's leases expired by their terms on January 31, 2004. Thereafter, notices of petition and petitions dated May 18, 2004 were served upon respondent. Respondent now moves, pursuant to CPLR Section 3211(a)(1) and (a)(7) for dismissal of each of the proceedings. The court consolidates these motions for disposition.

Respondent's Motion

Respondent argues that petitioner's notices of nonrenewal did not provide the minimum time period for notices pursuant to 9 N.Y.C.R.R. Section 2524.2(c)(3). Here, the notices were mailed on October 31, 2003 advising that the tenancies would not be renewed beyond the current leases which expired January 31, 2004. The window period for service of a notice of nonrenewal based upon owner's use is 90 to 150 days prior to the expiration of the lease. 9 N.Y.C.R.R. 2524.29(c)(3). Because the notices were mailed, argues respondent, five days should have been added to the notice period in order to insure their timeliness. ATM One, L.L.C. v. Landaverde, 2 N.Y.3d 472 (2004). Because the notices were mailed 92 days prior to expiration of the lease, the lack of an additional 5-day period for mailing deprived respondent of the minimum 90-day notice.

In Landaverde, the petitioner served a notice to cure regarding an alleged over-crowding condition in violation of the lease. The notice was mailed on September 8, 2000, and set a cure date of September 18, 2002. The tenant actually received the notice on September 9, 2000, thus affording nine days in which to cure the alleged lease violation. The tenancy was subject to the Emergency Tenant Protection Regulations which are silent as to when service is complete. The Court of Appeals endorsed the approach used by the trial court in applying the rule enunciated in CPLR Section 2103(b)(2) which requires that in pending actions, five days be added to the prescribed notice period when papers are served by mail. The court held that in such cases service would be deemed complete upon mailing. In adopting this position, the Court of Appeals examined the legislative intent of the regulations enacted pursuant to the Emergency Tenant Protection Act of 1974 (ETPA) and the court noted:

[t]he Legislature enacted the ETPA to address the "serious public emergency" in housing across New York State as evidenced by "an acute shortage of housing accommodations" (McKinney's Uncons Law of NY Section 8622; L 1974, ch 576, as amended).

Id. at 477. The court held that this legislative purpose would be advanced by affording the tenant the full 10-day period to take affirmative action and cure the lease violation, thus forestalling forfeiture of the tenancy. Such affirmative action on the part of the tenant is consistent with the legislative intent of the ETPA to preserve rent-regulated housing.

A notice of nonrenewal, on the other hand, does not trigger an obligation upon the tenant to take immediate affirmative action and is, in this respect, different from a notice to cure or a notice of termination. Summary proceedings are governed by statute and the requirements for their use must be strictly construed. See Berkeley Associates v. Di Nolfi, 122 A.D.2d 703 (1st Dept. 1986) citing Goldman Bros. v. Forester, 62 Misc.2d 812 (Civ. Ct. N.Y. Co. 1970). Therefore, the court is reluctant to impose additional procedural requirements not explicitly required by precedent or enacted by the legislature or an administrative agency. Tompkins Park-St. Mark's Assoc. v. Boz Boz II Enterprises. Ltd., 177 Misc.2d 949 (A.T. 1 1993); cf. Mennella v. Lopez-Torres, 91 N.Y.2d 474 (1998); Brusco v. Braun, 84 N.Y.2d 674 (1994). The court does not believe that the legislative intent discerned by the court in Landaverde is clearly applicable to the facts of this case. Use of the Landaverde rule with respect to notices of nonrenewal would substantially prejudice petitioner inasmuch dismissal of the proceeding would compel renewal of the lease and foreclose prosecution of the cause of action for up to two years. The benefit of the Landaverde rule to a tenant who receives a notice of nonrenewal is not clear because of the already lengthy notice period provided in 9 N.Y.C.R.R. Section 2524.2(c)(3). The court is constrained to narrowly construe the court's decision in Landaverde and not extend its use beyond those types of notices specifically addressed in that decision or within the ambit of the legislative intent of the statutes or administrative regulations. While the court believes that uniformity in the service requirements for notices in summary proceedings is desirable, legislative action is necessary to alter existing procedures and the court shall not encroach upon that domain. See Will of Boyd, 161 Misc.2d 191 (Surr. Ct. Nassau Co. 1994).

Petitioner's Cross Motion

Petitioner seeks an order compelling respondent to pay use and occupancy pendente lite. In order to preserve the status quo during the course of the litigation and more equitably balance the interests of the parties herein, the court orders respondent to pay use and occupancy at the rate reserved under the most recent lease renewals. Eli Haddad v. Cal Redmond Studio, 102 A.D.2d 730, 476 N.Y.S.2d 864 (1st Dept. 1984); 300 East 34th St. Co. v. Paleias, N.Y.L.J., Jun. 20, 1997, p. 25, c. 5 (A.T.1). Respondent shall pay use and occupancy which has accrued from the date of the petitions through and including December 2004 by December 20, 2004. Thereafter, respondent shall pay use and occupancy by the tenth of each month.

Accordingly, respondent's motions are denied in their entirety. Petitioner's cross motions are granted to the extent provided above. The proceedings shall be restored to the court's calendar on December 22, 2004 at 9:30 A.M., Part J, Room 851. This constitutes the decision and order of the court.
NYHawk
 
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