615 Co. v. Mikeska

New York Court of Appeals

615 Co. v. Mikeska

556 N.E.2d 1069, 75 N.Y.2d 987, 557 N.Y.S.2d 262, 1990 N.Y. LEXIS 1018

CourtNew York Court of Appeals

DecidedMay 3, 1990

StatusPublished

Cited by22 cases

This text of 556 N.E.2d 1069 (615 Co. v. Mikeska) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

615 Co. v. Mikeska, 556 N.E.2d 1069, 75 N.Y.2d 987, 557 N.Y.S.2d 262, 1990 N.Y. LEXIS 1018 (N.Y. 1990).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

It has long been the rule in this State that a landlord who is uncertain as to whether a lease must be renewed can ask a court to declare the rights of the parties and resolve the dispute before the time for renewal arrives (Leibowitz v Bickford’s Lunch Sys., 241 NY 489; Fidelity & Columbia Trust Co. v Levin, 248 NY 551; see also, Borchard, Declaratory Judgments, at 625-628). In the circumstances presented, however, involving a situation heavily regulated by statute, we agree with the Appellate Division that the general rule is not dispositive.

At issue here is a lease under the rent stabilization laws, which provide that a landlord must offer a renewal lease during a "window period” shortly before the lease’s expiration, unless the tenant has not been using the housing accommodation as a "primary residence” (Rent Stabilization Code [9 NYCRR] §§ 2523.5, 2524.4 [c]). That a tenant is not using the premises as a "primary residence” does not entitle the landlord to eviction during the lease term, but only to nonrenewal, and the landlord’s right to nonrenewal on this basis can be interposed only during times specified by statute in the window period. While we are not now called upon to determine what would constitute "primary residence” during a lease term, it would seem to be generally desirable for a court considering the issue of nonprimary residence to be able to evaluate the entire history of the tenancy to the time of renewal.

We conclude, therefore, that it would be inconsistent with the statutory concept of "primary residence,” as well as the requirement of a legally matured controversy for a declaratory judgment action, to permit a landlord to avail itself of that remedy prior to the window period in the circumstances presented by cases such as these.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

[989]*989Order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

It has long been the rule in this State that a landlord who is uncertain as to whether a lease must be renewed can ask a court to declare the rights of the parties and resolve the dispute before the time for renewal arrives (Leibowitz v Bickford’s Lunch Sys., 241 NY 489; Fidelity & Columbia Trust Co. v Levin, 248 NY 551; see also, Borchard, Declaratory Judgments, at 625-628). In the circumstances presented, however, involving a situation heavily regulated by statute, we agree with the Appellate Division that the general rule is not dispositive.

At issue here is a lease under the rent stabilization laws, which provide that a landlord must offer a renewal lease during a "window period” shortly before the lease’s expiration, unless the tenant has not been using the housing accommodation as a "primary residence” (Rent Stabilization Code [9 NYCRR] §§ 2523.5, 2524.4 [c]). That a tenant is not using the premises as a "primary residence” does not entitle the landlord to eviction during the lease term, but only to nonrenewal, and the landlord’s right to nonrenewal on this basis can be interposed only during times specified by statute in the window period. While we are not now called upon to determine what would constitute "primary residence” during a lease term, it would seem to be generally desirable for a court considering the issue of nonprimary residence to be able to evaluate the entire history of the tenancy to the time of renewal.

We conclude, therefore, that it would be inconsistent with the statutory concept of "primary residence,” as well as the requirement of a legally matured controversy for a declaratory judgment action, to permit a landlord to avail itself of that remedy prior to the window period in the circumstances presented by cases such as these.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

[989]*989Order affirmed, with costs, in a memorandum.

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Bluebook (online)

556 N.E.2d 1069, 75 N.Y.2d 987, 557 N.Y.S.2d 262, 1990 N.Y. LEXIS 1018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/615-co-v-mikeska-ny-1990.

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