109 Misc. 2d 672 | N.Y. App. Term. | 1981
Lead Opinion
OPINION OF THE COURT
Final judgment entered November 28, 1980 is affirmed, with $25 costs.
Landlord Jeanne Short owns 520 East 85th Street, New York City, a five-floor building containing eight apartments. Mrs. Short occupies the entire second floor of the building, and the apartment at issue is apartment 1-W, located on the first floor. It was stipulated between the parties that the landlord did not at any time offer the tenant of apartment 1-W a renewal lease, and that on June 12,1980, 60 days before the expiration date of that tenant’s lease, the landlord advised the tenant that her lease would
The landlord’s mother was, at the time of the trial, 87 years of age, in poor health, and living alone. The only witnesses called by the landlord were the landlord herself and the landlord’s mother. The tenant did not testify and called no witnesses.
The court below in awarding judgment to the tenant found that while the landlord established a good faith intention to place her mother in apartment 1-W (Code of Real Estate Industry Stabilization Association of New York City, Inc. [Rent Stabilization Code], §54, subd [b]) she failed to establish having such an intent during the critical period between 150 and 120 days before the expiration of tenant’s lease.
Subdivision (b) of section 54 of the Rent Stabilization Code provides in essence that a landlord need not renew a lease for a rent-stabilized apartment, where the owner wishes to utilize the apartment, for himself or for a member of his immediate family. Section 60 of the Rent Stabilization Code governs the time within which a landlord of rent-stabilized premises must provide tenants with notices for renewal of leases. That section specifically provides: “Every owner shall notify the tenant in occupancy not more than 150 and not less than 120 days prior to the end of the tenant’s lease term, by mail, of such termination and offer to renew the lease at a rent not in excess of the stabilization rent permitted for each renewal lease and otherwise on the same conditions as the expiring lease, and shall give such tenant a period of 60 days to renew such lease and accept the offer”.
Significantly there is no requirement in section 60 that a landlord notify the tenant — within the specified 150- to 120-day period before the expiration of the lease — that the landlord intends not to renew the tenant’s lease in accordance with one of the exceptions of section 54. Predictably situations arise where a landlord neither proffers a notice for renewal within the 150- to 120-day period prior to the expiration of tenant’s lease nor advises tenant within that time frame of an intention not to offer a renewal lease. If at
Accepting as we do that the landlord must prove that during the period of 150 to 120 days before the expiration of tenant’s lease she intended not to renew tenant’s lease in order to give the apartment to her 87-year-old mother, we must look to the record to determine whether the landlord sustained her burden in that regard. Parenthetically, on
Close examination of the record discloses that the landlord failed to even hazard a thought in relation to the critical 150- to 120-day period, as to when she formulated the intention of having her mother occupy apartment 1-W. Thus when her counsel inquired: “Q. Now, did there come a time when you determined on this course of procedure [i.e., install her mother in apartment 1-W]?” the landlord responded: “A. Well, I don’t think Mr. Goldstein, I can say, a particular date. It’s just that * * * 87 is a fine age, and my mother”.
And the transcript continues:
“the court: Please, only respond to the question.
“the witness: I don’t quite know how to answer it.
“the court: If you don’t know how to answer the question, or the question is not within your personal knowledge tell us that.
“the witness: What was the question?
“Q. When did you decide you wanted to recover this apartment?
“A. I couldn’t say, give you a day, Mr. Goldstein.”
It was based upon this quoted testimony that the court below concluded that the landlord had failed to sustain her burden of proving an intention, within the period of 150 to 120 days prior to the expiration of tenant’s lease, of having her mother occupy the apartment. The court properly found landlord did not sustain her burden of proof on that issue, and, accordingly, we affirm the judgment of possession rendered in favor of the tenant.
Dissenting Opinion
(dissenting). I would reverse the judgment entered which awarded possession of the subject premises to the tenant.
In this case the landlord sought to obtain possession of the tenant’s apartment for her own use upon the expiration of the lease and to be occupied by her 87-year-old mother.
“The owner shall not be required to offer a renewal lease to a tenant only upon one of the following grounds:
“(b) Occupancy by owner or immediate family. The owner seeks in good faith to recover possession of a dwelling unit for his own personal use and occupancy or for the use and occupancy of his immediate family; the term “immediate family” includes a husband, wife, son, daughter, stepson, stepdaughter, father, mother, father-in-law or mother-in-law.”
Although prior notice was not required by the statute, it was stipulated at trial, between the parties, that 60 days before the expiration date of tenant’s lease the landlord did advise the tenant that her lease would not be renewed because of the need the landlord had to obtain the apartment for her mother.
Subdivision (b) of section 54 of the Rent Stabilization Code does not require that a notice of intention not to renew the lease be served upon the tenant within any particular time. Here we are confronted with a conflict between the correct interpretation of subdivision (b) of section 54 and the enumerated time period found in section 60 of the Rent Stabilization Code. Significantly there is no requirement under section 60 that a landlord notify the tenant within the specified 150- to 120-day period before the expiration of the lease that the landlord intends not to renew the tenant’s lease. It requires only that the landlord notify the tenant of the expiration date when offering a renewal of the lease. In this case the notice by the landlord to the tenant with respect to renewal as provided in section 60 of the Rent Stabilization Code would not only be a futile act but more importantly would be inconsistent with the intent of the landlord to occupy the tenant’s apartment upon the expiration of the lease (see Bradford v Holmes, 109 Misc 2d 805).
The landlord’s mother was, at the time of the trial, 87 years of age, living alone, in poor health after a bad
I find that the landlord complied fully with the only provision of the Rent Stabilization Code, namely, subdivision (b) of section 54 which was relevant to the result desired in having the landlord obtain the apartment for her mother.
Accordingly, I recommend that the final judgment of possession rendered in favor of the tenant be reversed.
Concur: Riccobono and Asch, JJ.; Tierney, J. P., dissents in a separate memorandum.