Notice of Non-renewal in NYC rent stabilized apartment

[queensgirl]

Can anyone tell me what a" notice of non renewal" for a rent stabilized apartment must include for "owner occupancy"? I know it must be served at least 90 days before the lease is due to expire (and no more than 150 days before). Just how specific does it have to be, other than stating that the LL wants the apartment for himself or a family member. Also, is this notice in the form of a letter from the landlord or an attorney, what exactly is it? Thanks to all.

 

[Michael Wechsler]

Can anyone tell me what a" notice of non renewal" for a rent stabilized apartment must include for "owner occupancy"? I know it must be served at least 90 days before the lease is due to expire (and no more than 150 days before). Just how specific does it have to be, other than stating that the LL wants the apartment for himself or a family member. Also, is this notice in the form of a letter from the landlord or an attorney, what exactly is it? Thanks to all.

Below is the code relating to a "Golub Notice." The case posted afterwards should give you a better understanding of it's purpose, which is a clear, informative notice to the tenant of the intent not to renew the lease.

9 NYCRR § 2524.2

§ 2524.2 Termination notices

(a) Except where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2524.3 or 2524.4 of Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.

(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

(c) Every such notice shall be served upon the tenant:

(1) in the case of a notice based upon section 2524.3(f) of this Part, at least 15 days prior to the date specified therein for the surrender of possession; or

(2) in the case of a notice on any other ground pursuant to section 2524.3, at least seven calendar days prior to the date specified therein for the surrender of possession, or in the case of a notice pursuant to section 2524.4(c) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term; or

(3) in the case of a notice pursuant to sections 2524.4(a) and 2524.5(a) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term, or in the case of a hotel permanent tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a court proceeding; or

(4) in the case of a notice pursuant to section 2524.4(b) of this Part, at least 120 and not more than 150 days prior to the expiration of the lease term, or within 120 days of the expiration of the tenant's lease term, provided no summary proceeding can be commenced until the expiration of 120 days from the service of such notice, accompanied by a form prescribed by the DHCR advising the tenant of the penalties set forth in section 2524.4(b) of this Part for failure to use the housing accommodation for the charitable or educational purposes for which recovery is sought.

(d) All notices served pursuant to subdivision (c) of this section shall be in lieu of any notice in any lease or rental agreement providing for a lesser time for termination of tenancy.

(e) All notices served pursuant to section 2524.5(a)(2) of this Part shall state:

(1) that the owner will not renew the tenant's lease because the owner has filed an application pursuant to section 2524.5(a)(2) for permission to recover possession of all of the housing accommodations in the building for the purpose of demolishing them, for which plans and financing have been obtained, or are in the process of being obtained, as stated in the application;

(2) that while the application is pending, the tenant may remain in occupancy;

(3) that the tenant shall not be required to vacate until DHCR has issued a final order approving the application and setting forth the time for vacating, stipends and other relocation conditions; and

(4) that the tenant must be offered a prospective renewal lease if the application is withdrawn or

 

[Michael Wechsler]

1234 Broadway LLC, Petitioner,
v
Jing Yong Xu et al., Respondents.


Civil Court of the City of New York, New York County, November 4, 2005

APPEARANCES OF COUNSEL

Santo Galino, New York City, for petitioner. Steven T. Gee, New York City, for Jing Yong Xu, respondent.


OPINION OF THE COURT
Joseph E. Capella, J.

The respondent is a permanent hotel tenant whose apartment is subject to the Rent Stabilization Code (RSC). The parties' initial one-year lease expired December 31, 2002, and there have been no lease renewals. The petitioner alleges in its "30 Day Notice of Termination" that the respondent does not occupy the subject hotel apartment as his primary residence. By notice of motion dated August 3, 2005, the petitioner seeks both discovery and use and occupancy (u&o). In opposition, the respondent cross-moves for summary judgment and dismissal due to the petitioner's alleged failure to serve a termination notice (also known as Golub notice) at least 90 and not more than 150 days prior to the expiration of the lease term.

A permanent hotel tenant is an individual who has continuously resided in the same hotel accommodation as his/her primary residence for a period of at least six months. (RSC [9 NYCRR] § 2520.6 [j].) Despite this classification, an owner may commence a proceeding to recover possession upon expiration of the existing lease term, if any, where the hotel accommodation is not occupied by the tenant as his/her primary residence (§ 2524.4 [c]), or where the apartment is sought for the owner's use (§ 2524.4 [a]). An owner must first give the tenant 30 days' notice of intent to commence a nonprimary residence proceeding. (§ 2524.4 [c].) The 30-day notice may be combined with the notice requirement of section 2524.2 (c) (2), which calls for service of a Golub notice "at least 90 and not more than 150 days prior to the expiration of the lease term." (Emphasis added.) The purpose of a Golub notice is to apprise the tenant of the owner's intent not to renew the lease and the specific reason (i.e., owner use or nonprimary) for same. (Scherer, Residential Landlord-Tenant Law in New York § 8:280 [2005].) As already noted, however, in the instant proceeding there is no current renewal lease to delineate the exact expiration date of the tenancy. Although a rent-stabilized tenant is typically entitled to a renewal lease at the expiration of the lease term (§ 2522.5 ), this does not appear to be true for a [*2]permanent hotel tenant. According to section 2522.5 (a) (2), a hotel occupant who obtains "a lease becomes a permanent tenant but the lease need not be renewed." (Emphasis added.) The aforementioned nonrenewal language is further supported by the fact that hotel tenants are specifically excluded from section 2522.5 (b) of the RSC, which is the section that addresses renewal leases. Despite the fact that the parties herein at one time had a written lease agreement, there is currently no written renewal lease, nor does it appear that the petitioner was obligated to provide the respondent with same. Under these facts it would appear that requiring the petitioner to serve a Golub notice where there is no written renewal lease with a concrete expiration date for the tenancy (§ 2524.2 [c] [2]) is impractical.

A comparison of the statutory requirements for a Golub notice in a nonprimary residence proceeding versus one for owner use appears to indicate a legislative intent of not requiring said notice in a nonprimary proceeding where there is no current lease. For instance, where a landlord seeks to commence an owner use holdover proceeding against a permanent hotel tenant, service of a Golub notice must be made at least 90 but not more than 150 days prior to the expiration of the lease term, or where there is no lease, at least 90 but not more than 150 days prior to commencement. (§ 2524.2 [c] [3].) In a nonprimary residence holdover proceeding, however, the RSC only requires service of a Golub notice "at least 90 and not more than 150 days prior to the expiration of the lease term" (§ 2524.2 [c] [2]), and unlike the owner use case, it does not require and/or allow for service upon a "hotel . . . tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a court proceeding." (§ 2524.2 [c] [3].) If in fact a permanent hotel tenant is not entitled to a renewal lease, and the lack of one essentially creates a permanent month-to-month tenancy (Cambridge Dev., LLC v McCarthy, 2003 NY Slip Op 51433 [Civ Ct, Hous Part, NY County 2003]), then why require a Golub notice in an owner use case and not one for nonprimary residence. Although it is unclear from the RSC whether this omission was intentional or an oversight, these sections of the RSC (i.e., §§ 2524.4, 2524.2) were last amended in 2000, and there has been at least one known published decision which dispensed with the need for a Golub notice. (Cambridge Dev., LLC v McCarthy, 2003 NY Slip Op 51433, supra.) Moreover, the failure of the RSC to require and/or allow for service of a Golub notice upon a hotel tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a nonprimary residence holdover proceeding, must be accepted as an indication that its exclusion was intentional. (Pajak v Pajak, 56 NY2d 394 [1982].) Without an exact expiration date that a current written renewal lease would provide, or statutory language permitting service 90 and not more than 150 days prior to the commencement of a court proceeding, this court finds that the petitioner was under no obligation to serve a Golub notice upon the respondent before commencing the instant nonprimary residence holdover proceeding. Therefore, the respondent's cross motion for dismissal is denied.

The court now turns to the petitioner's motion for discovery and u&o. According to the petitioner, the respondent has not been seen at the subject premises, and receives mail, maintains a utility account and is registered to vote at 42-17 Gleane Street, Elmhurst, New York. Given this, and the presumption in favor of discovery in nonprimary residence holdover proceedings, the court is satisfied that the petitioner has demonstrated more than sufficient ample need for discovery. (New York Univ. v Farkas, 121 Misc 2d 643 [Civ Ct, NY County 1983].) However, with regard to that portion of the petitioner's proposed notice to produce which seeks [*3]rent bills, leases and property records for any residence (notice of motion, exhibit B, ¶ 39), the respondent may exclude those rent bills, leases and records that pertain to the subject premises, which the petitioner should already have. The petitioner's proposed notice to produce also seeks "[a]ny documents not requested above that [re]spondent intends to offer into evidence at a trial on this matter." (Notice of motion, exhibit B, ¶ 51.) This request does not sufficiently specify the items sought with reasonable particularity, and as the burden of specificity is on the petitioner (Mendelowitz v Xerox Corp., 169 AD2d 300 [1st Dept 1991]), said request is stricken. If the petitioner lacks knowledge of the existence of specific documents, then it should make use of a deposition and/or related procedures as provided for in the CPLR so as to ascertain the existence of such documents in order that they may be designated with specificity in a notice to produce. (City of New York v Friedberg & Assoc., 62 AD2d 407 [1st Dept 1978].) The monthly u&o is set at the last legal rental amount, and the respondent is directed to pay without prejudice all unpaid u&o which may have accrued from the commencement of this proceeding within five days after service of a copy of this order with notice of entry. The respondent is further directed to pay without prejudice the ongoing monthly u&o on or before the tenth day of each month during the pendency of this proceeding. Based on the aforementioned, the petitioner's motion for discovery[FN*] and u&o is granted, the respondent's cross motion is denied, and the proceeding is marked off the calendar pending discovery.

Footnotes


Footnote *: The account number(s), dollar amount(s) and Social Security number(s) appearing on any bank, credit card or similar statements may be redacted.