Landaverde Rule applied to Golub Notice

[NYHawk]

SHOSHANY v. GOLDSTEIN, NYLJ, Feb. 9, 2005 , page 18, col. 3 (Civ. Ct., N.Y. Co.,Judge Capella).

This is an owner use holdover proceeding in which the petitioner seeks to recover possession of the respondents' rent stabilized apartment, which they have occupied since 1974, because the petitioner's daughter is relocating to Manhattan to attend law school and "needs to obtain a rent free apartment from her father in easy commuting distance to [her law school] and to fulfill her long range goal of practicing law in Manhattan." It is undisputed that the nonrenewal notice ("Golub notice") sent pursuant to sections 2524.2 and 2524.4(a) of the Rent Stabilization Code ("RSC") was mailed on April 28, 2003, and terminated the tenancy as of July 30, 2003. Pursuant to section 2524.2(c) of the RSC, the respondents are entitled to notice of at least 90 and not more than 150 days prior to the expiration of the lease term. According to the respondents, as five days must be added to the mailing, (ATM v. Landaverde, 2 N.Y.3d 472, 779 N.Y.S.2d 808 [2004]), the Golub notice was not served until May 3, 2004, only 88 days prior to the expiration of the lease term.[1] Therefore, the respondents seek summary judgment and dismissal of the instant summary holdover proceeding.

In Landaverde, the Court of Appeals held that when owners elect to serve a notice to cure pursuant to section 2504.1(c) of the Emergency Tenant Protection Regulations by mail, they must compute the date certain by adding five days to the 10-day minimum cure period. The respondents correctly note that the regulations at issue in Landaverde and here are silent as to when service id deemed complete, and also notes that the legislative intent for both are identical. (Compare 9 N.Y.C.R.R. §2500.13 and 9 N.Y.C.R.R. §2520.3; see also N.Y.C. Admin. Code §26-501.) Although the petitioner articulates what it considers to be a genuine prejudice, (i.e., that his "daughter still awaits her apartment, while respondents raise new hyper technical defenses"), the degree of prejudice does not appear to have been the central concern in Landaverde. (Lynch v. Dirks, N.Y.L.J., January 5, 2005, pg. 19, col. 3 [Civ. Ct., N.Y. Cty.].) And to the extent that prejudice is considered, the court notes that whereas a tenant can cure a breach even after judgment, no such cure exists in an owner use holdover proceeding. (R.P..A.P.L. §753(4).) The petitioner further argues that the case before this court is far different from landaverde because the nature, purpose and time frame of a notice of nonrenewal is different from a notice to cure. The court acknowledges these obvious differences and the current confusion within the lower courts, (Lynch v. Dirks, N.Y.L.J., January 5, 2005, supra; KSLM v. Bonnemere, N.Y.L.J., January 5, 2005, pg. 19, col. 1 [Civ. Ct., N.Y. Cty.]; Gnann v. Crawford, 73194/04 [Civ. Ct., N.Y. Cty., Dec. 1, 2004]); however, Landaverde made it clear that the proper judicial function in matters of statutory and regulatory interpretation is to discern and apply the legislative intent. And in doing so, it then proceeded to add five days for mailing in order to ensure a practical and fair solution to the regulatory ambiguity. The regulations and legislative intent at issue in Landaverde and here are similar, and as the respondents correctly note, there is no principled basis for finding any particular notice period less important than another. If Landaverde was only concerned with the shortened time period associated with a 10-day notice, then what about a 7-day notice of termination, (9 N.Y.C.R. §2525.2(c)(2)), a 15-day notice of termination, (9 N.Y.C.R.R. §2524.2(c)(1)), or those instances in which a notice of termination and Golub notice are combined into a single notice? (W.T. Associates v. Glauber, 153 A.D.2d 538, 544 N.Y.S.2d 612 [1st Dept. 1989].) If the essence of Landaverde is to enforce and make meaningful a prescribed minimum period for notices, then a proper Golub notice must provide a tenant with a minimum of 90 days to either challenge the grounds for nonrenewal or allow the tenant time to make other living arrangements. Therefore, this court finds that the petitioner's Golub notice was not served in a timely manner, and the respondents' motion is granted and the proceeding is dismissed.

This constitutes the decision and order of this court, copies of which are being mailed by the Court to counsel for the parties.

FootNotes:

[1]

As the limited facts relevant to the instant motion are undisputed, the ultimate issue for this court to resolve involves one of law. (Weinsen v. New York University, 304 A.D.2d 459, 758 N.Y.S.2d 51 [1st Dept. 2003]; Green v. Fox, 255 A.D.2d 417, 680 N.Y.S.2d 560 [2nd Dept. 1998].)

<small>[ February 09, 2005, 06:53 AM: Message edited by: NYHawk ]</small>