Rudd v. Sharff

27 Misc. 3d 860
CourtCivil Court of the City of New York
DecidedMarch 11, 2010
StatusPublished

This text of 27 Misc. 3d 860 (Rudd v. Sharff) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rudd v. Sharff, 27 Misc. 3d 860 (N.Y. Super. Ct. 2010).

Opinion

OPINION OF THE COURT

Gerald Lebovits, J.

In Pultz v Economakis (10 NY3d 542, 548 [2008]), the Court of Appeals interpreted New York City Rent Stabilization Code (RSC) (9 NYCRR) § 2524.4 (a) to allow owners to recover entire buildings in owner’s-use holdover proceedings if they can prove, at trial, their good faith intention to recover the units for their personal use as their primary residence. Petitioners here, like the petitioner in Pultz, seek to recover an entire building. The issue in this owner’s-use proceeding seeking an entire building is what a predicate notice must say before a proceeding may go forward to a trial at which the owner must prove good faith.

In these two owner’s-use proceedings, petitioners seek to recover possession of two apartments, which respondents occupy, in the same building. Respondents move to dismiss the petition. Petitioners cross-move for orders compelling respondents to pay use and occupancy pendente lite. These cases, which present nearly identical issues of fact and law, are consolidated for disposition. For the reasons below, respondents’ motions to dismiss are granted. Because this proceeding is dismissed, petitioners’ cross motion must be denied.

Background

The undisputed facts follow.

Respondents Don Knight and Ray Kenny are the record tenants of a rent-stabilized apartment under a written rental agreement dated January 1, 1994, between them and petitioners’ predecessor, the subject building’s prior owner and landlord. Respondent Eric Sharff is the tenant of another rent-stabilized apartment in the same building under a similar agreement dated August 8, 1994. The leases covering both apartments [862]*862were extended by renewal lease agreements dated May 1, 2007, between respondents and petitioners’ predecessor for terms expiring on July 31, 2009.

On April 29, 2009, petitioners, including Frederick J. Rudd, became the owners of a four-story (and a roof deck), 13-unit apartment building containing the subject apartments. On April 30, 2009, petitioners served respondents with identical combined predicate termination and nonrenewal notices (Golub notices) declaring their intent to recover respondents’ apartments as part of petitioners’ plan to convert the entire building into a single-family home to be used as Rudd’s primary residence together with Kim Greenberg, his fiancée, and her two children.

Rudd’s plan for the building is contained in paragraph 6 of the predicate Golub notices:

“Frederick J. Rudd Plans to use the Building as follows:
“First Floor — entry hall
“Second Floor — kitchen, living room, dining room with powder room
“Third Floor — three to four bedrooms with bathrooms and family room
“Fourth Floor — master bedroom/was master bathroom, study/office, gym
“Installation of staircase from the fourth floor leading to the roof and roof deck
“Elevator from the first floor to the fifth [roof] floor to be installed.”

The notices go on to state Rudd’s intention to recover the remaining apartments in the building by serving nonrenewal notices on the other tenants in the building as their lease terms expire.

After respondents’ lease terms expired, petitioners brought these holdover proceedings by petitions dated August 6, 2009. Respondents now move to dismiss both petitions on the alleged ground that Rudd’s predicate notices are fatally defective.

Discussion

RSC § 2524.4 (a) (1) provides that an owner is not required to offer a renewal lease to a rent-stabilized tenant if the owner seeks to recover possession of the housing accommodation “for such owner’s personal use and occupancy as his or her primary residence in the City of New York.” Before an owner may law[863]*863fully exercise the power to decline a renewal lease under RSC § 2524.4 (a) (1), the owner must first provide the tenant with a written nonrenewal notice “at least 90 and not more than 150 days prior to the expiration of the lease term.” (RSC § 2524.2 [c]; accord Golub v Frank, 65 NY2d 900 [1985].) RSC § 2524.2 (b) provides that this notice must state the “ground under section . . . 2524.4 . . . 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.”

A proceeding brought on the basis of a nonrenewal notice that does not comply with RSC § 2524.2 must be dismissed. (See generally Hirsch v Stewart, 63 AD3d 74 [1st Dept 2009].) To comply with RSC § 2524.2, a notice must state the specific facts that form the basis for nonrenewal. A notice that merely declares an intention to recover the apartment for the owner’s use as the owner’s primary residence is alone insufficient because it states only the ground for nonrenewal and not nonconclusory facts supporting that ground. (Berkeley Assoc. Co. v Camlakides, 173 AD2d 193, 195 [1st Dept 1991], affd 78 NY2d 1098 [1991].) In evaluating the adequacy of facts contained in a notice, the standard is one of “reasonableness in view of all attendant circumstances.” (Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1st Dept 1996], lv denied 90 NY2d 829 [1997].)

The question before this court is this: When an owner’s timely nonrenewal notice states the owner’s intention to decline a renewal lease to a rent-stabilized tenant because the owner intends to use the entire building as a primary residence, but the owner indicates no desire to convert any apartment for personal use and occupancy until the entire building is recovered and the notice makes clear that the recovery might not take place for several years, is that notice reasonable in view of all attendant circumstances? This court finds under the circumstances of this case that it is not.

1. Future Contingencies

Respondents’ first major argument is that the Golub notice is improper because it contains facts dependent on future contingencies that might or might not occur. Respondents assert that petitioners’ notice cannot require them to vacate now because of a plan based on uncertain events like removing of multiple tenants from the building, marrying his fiancée, his fiancée and her children moving in with him, and converting the building into a one-family home. According to respondents, the [864]*864other tenants might not vacate, Rudd might not get married, his fiancée and her children might not move in, and the building might never become a one-family home. But the existence of contingencies does not invalidate a Golub notice if the owner has proposed the plan in good faith. (See Hirsch, 63 AD3d at 79 [“The argument that the penalties imposed by RSC § 2524.4 (a) (5) were intended as the sole remedy against a landlord whose intention to use the apartment personally turns out, in retrospect, not to have been genuine, is incorrect. . . . (A)n owner is not entitled to a judgment of possession in the first instance if the owner cannot prove his or her good faith intention prior to evicting the tenant”].) On a motion to dismiss, this court must assume as true that petitioners intend to use the apartments for the purposes stated in the notice. (E.g.

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Related

Pultz v. Economakis
890 N.E.2d 880 (New York Court of Appeals, 2008)
Hughes v. Lenox Hill Hospital
226 A.D.2d 4 (Appellate Division of the Supreme Court of New York, 1996)
Berkeley Associates Co. v. Camlakides
78 N.Y.2d 1098 (New York Court of Appeals, 1991)
Horsford v. Bacott
32 A.D.3d 310 (Appellate Division of the Supreme Court of New York, 2006)
Pultz v. Economakis
40 A.D.3d 24 (Appellate Division of the Supreme Court of New York, 2007)
Hirsch v. Stewart
63 A.D.3d 74 (Appellate Division of the Supreme Court of New York, 2009)
Foxell v. New York City Human Resources Administration
167 A.D.2d 126 (Appellate Division of the Supreme Court of New York, 1990)
Berkeley Associates Co. v. Camlakides
173 A.D.2d 193 (Appellate Division of the Supreme Court of New York, 1991)
Bianco v. Sciaulino
26 Misc. 3d 780 (Civil Court of the City of New York, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
27 Misc. 3d 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudd-v-sharff-nycivct-2010.