79 A.D.2d 915 | N.Y. App. Div. | 1981
Lead Opinion
Order, Supreme Court, New York County, entered July 9, 1980, denying plaintiff’s motion for summary judgment and granting the cross motion of defendants Patterson to dismiss the complaint, is affirmed, without costs. Unsuccessful in prior dispossess proceedings, with one such proceeding currently pending in Civil Court, plaintiff landlord has brought this action seeking a judgment declaring that the tenants are not entitled to automatic renewal of their leases because of chronic lateness in the payment of rent. Plaintiff recites a litany of alleged abuses by these tenants in the payment of their rent. Although payment is due on the first of each month, the average date for payment in full over the first 19 months of occupancy (through Feb., 1980) has been the 16th of the month. Only twice since January, 1979 has full payment of monthly rent been received before the 13th, and only three times before the 15th. During this period four monthly rent checks were dishonored upon deposit. Plaintiff states that the Pattersons have threatened to withhold rent until the very threshold of eviction, on one occasion carrying through on their threat and actually suffering a default judgment for overdue rent, then making payment only after obtaining a stay of a warrant of eviction. Tenants assert that two months’ rent (May and June, 1979) were withheld because of recorded hazardous violations which landlord agreed to cure during the summary proceedings. The rent was then paid upon the basis of landlord’s promise to repair. Part V of the Code of the Real Estate Industry Stabilization Association of New York City, Inc., sets forth a landlord’s grounds for eviction and refusal to renew a lease. Section 50 of the code provides in pertinent part as follows: “No tenant, so long as he continues to pay the rent to which the owner is entitled shall be denied a renewal lease as prescribed by this Code, nor shall he be removed from any dwelling unit by action to evict or to recover possession, * * * except on one or more of the grounds specified in this Code”. Five instances where the owner need not offer a renewal lease are enumerated in section 54 of the code: (a) occupancy by a proprietary lessee, (b) occupancy sought by the owner or his immediate family, (c) tenant’s refusal to renew, (d) withdrawal of the premises from the rental market, (e) occupancy not as a primary residence. The introduction to section 54 expressly provides that an owner is relieved of the requirement to offer a renewal lease “only upon one of [these five] grounds” (emphasis supplied). These grounds do not include late payment of rent, chronic or otherwise. This is consistent with the general proposition that payment of rent is not a condition precedent to the right of a tenant to a renewal of his lease. (Rasch, NY Landlord & Tenant-Summary Proceedings [2d ed], § 328.) Our dissenting brethren have concluded that section 54 of the code should be broadened to cover instances where a tenant is habitually late in payment of rent. They find it incomprehensible that a tenant
Dissenting Opinion
dissent in a memorandum by Kupferman, J. P., as follows: The landlord seeks a declaratory judgment to the effect that a tenant who is chronically late in paying rent on premises subject to the Rent Stabilization Law and Regulations as amended by the Emergency Tenant Protection Act of 1974, need not be offered a renewal lease. There are five specific grounds where the owner is not required to offer such a renewal lease^ as enumerated in the majority opinion. (Rent Stabilization Code, § 54.)
The Code of the Real Estate Industry Stabilization Association of New York City, Inc., was adopted by the New York City Rent Stabilization Association pursuant to section YY51-6.0 of the New York City Administrative Code. (Cf. Tenant Protection Regulations under the Emergency Tenant Protection Act of 1974, § 51.)