Berkeley Associates Co. v. Camlakides

173 A.D.2d 193

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1991
• Status: Published

Opinions

Order of the Appellate Term, Supreme Court, First Department (Miller and McCooe, JJ.; Parness, J. P., dissenting), entered February 9, 1990, which affirmed an order of the Civil Court, New York County (Alice Schlesinger, J.), entered on December 6, 1988, granting a motion by respondents Angelina and Helena Camlakides to dismiss petitioner The Berkeley Associates Company’s holdover petition, is affirmed, without costs or disbursements.

By Notice of Nonrenewal dated December 21, 1987, timely served on tenants during the "window period” of 120-150 days before expiration of their lease, the landlord-petitioner Berkeley Associates notified the tenants Angelina and Helena Camlakides of its intent not to renew their Rent Stabilized lease. The sole statement of ground for non-renewal was "the fact that you do not occupy the Premises as your primary residence.” The Notice reflected a "cc” to Angelina Camlakides in Ridge, New York, and to Helena Camlakides in Forest Hills, New York.

An untimely Notice dated May 26, 1988, specified that the facts establishing the existence of grounds for non-renewal included, but were not limited to, the fact that the tenants had a vehicle registered in Ridge, New York, the fact that the building staff and management had not seen the tenants using or occupying their apartment for an extended amount of time, the fact that the tenants own property in Florida, the fact that one of the tenants (it does not say which) maintains a driver’s license at the Ridge address, and the fact that one of the tenants (it does not say which) lists Palm Beach as the legal address on her New York State Driver’s License.

The Civil Court granted the tenants’ motion to dismiss the petition finding the timely Notice was defective under section 2524.2 (b) of the Rent Stabilization Code (9 NYCRR), which mandates the service upon the tenant of a non-renewal notice with "the facts necessary to establish the existence of such ground”. The Appellate Term affirmed the Civil Court with one Justice dissenting.

Rent Stabilization Code § 2524.2 (b) requires that a notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground, as well as "the facts necessary to establish the existence of such ground”. The Rent Stabilization Code is promulgated pursuant to the Rent Stabilization Law, part of the New York City Administrative Code, which should be interpreted according to its plain meaning. (Matter of Ronald Assocs. No. 2 v Michael, 93 AD2d 723, 724, affd 61 NY2d 689.)

The statement in the first timely Notice that "you do not occupy the Premises as your primary residence” simply stated the ground for the non-renewal. It was not a statement of facts supporting that ground.

In Kaycee W. 113th St. Corp. v Diakoff (160 AD2d 573, 574) applying section 2204.3 (b) of the New York City Rent and Eviction Regulations (9 NYCRR), we held that a notice of non-primary residence was insufficient to serve as a predicate for an eviction proceeding because it "merely recited the legal ground for the eviction, but failed to set forth any of the facts upon which the ensuing non-primary-residence proceeding would be based” (citing First Sterling Corp. v Zurkowski, 142 Misc 2d 978).

The policy arguments raised by the dissent herein which were also raised in the dissent at the Appellate Term were adequately answered in Justice McCooe’s concurring memorandum at the Appellate Term. In any event, regardless of what we perceive to be the wisdom of the underlying policy, we are constrained by the plain language of the Rent Stabilization Code to enforce it as written (McKinney’s Cons Laws of NY, Book 1, Statutes § 76; Zaldin v Concord Hotel, 48 NY2d 107, 113). Concur—Milonas, Rosenberger, Asch and Smith, JJ.