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Civil Court, City of New York.

120 BEACH 26TH STREET, LLC, Petitioner (Landlord) v. Todd CANNON, Respondents (Tenant).


Decided: July 23, 2019

Attorneys for Petitioner Joseph C. DeJesu, Esq. DeJesu Maio & Assoicates P.C. 191 New York Avenue Huntington, New York 11743 (631) 549-1400 Attorneys for Respondent Alex Jacobs, Esq, of Counsel Queens Legal Services 89-00 Sutphin Blvd. Jamaica, NY 11435 (347) 592-2297

Petitioner commenced this holdover proceeding to recover possession of this rent stabilized apartment due to Respondent's failure to renew the lease pursuant to 9 NYCRR § 2523.5(a) of the Rent Stabilization Law. Respondent interposed an answer in which he asserted that Petitioner failed to comply with 9 NYCRR § 2523.5 and Rent Stabilization Law § 26-511 as the renewal lease offered was not in the form prescribed or a facsimile of such form approved by the DHCR and that Petitioner failed to “furnish to each tenant signing a new or renewal lease, a rider describing the rights and duties of owners and tenants․” Respondent also argues that Petitioner provided a lease including tenants Petitioner knew or should have known, no longer resided at the premises. Furthermore, the alleged renewal lease offered by Petitioner cannot constitute a valid contract offer as there are essential lease terms missing or ambiguous rendering the lease offer invalid. After trial and due consideration of the credible documentary and testimonial evidence adduced at trial, the decision of the Court is as follows:

Ms. Kim Hassan testified on behalf of Petitioner that she is employed by Petitioner as the office manager and she is responsible for leasing, rentals, reviewing and keeping tenants' records. Certified copies of the deed, DHCR rent roll and Multiple Dwelling Registration were admitted into evidence as Petitioner's exhibits 1, 2 & 3 respectively. A copy of the initial lease between the parties dated August 1, 2016 and ending July 31, 2017 was admitted into evidence as exhibit 4 and the proposed renewal lease form dated April 24, 2017 was admitted into evidence as exhibit 5.

Ms. Hassan testified that after the lease renewal was mailed to Respondent and his wife, she received a call from Mrs. Susan Duncan-Ristic (one of the two tenants at the time) who informed her that her family would not be renewing the lease at that time as they were in a program called “Build it Back.” This program was assisting them in repairing their house which was damaged by hurricane Sandy, and as the repairs were scheduled to be completed sooner, they were not able to sign a one or two year renewal lease. However, they would be moving to another unit within the subject building through a different program called, New York Disaster Relief Interfaith who had already signed a lease with Respondent for another unit. Ms. Hassan, never spoke to Mr. Cannon. In the end of June 2017, Mrs. Duncan-Ristic vacated the subject apartment but Mr. Cannon remained. The last rent paid was $1,900.00 for June 2017.

On cross-examination Ms. Hassan admitted that after Ms. Duncan-Ristic vacated the subject apartment and moved into another unit in the same building, management did not send a new renewal lease to Mr. Cannon without Ms. Duncan-Ristic's name.

On redirect examination Ms. Hassan testified that although the legal regulated rent had not been set at the time that the renewal lease was offered, the preferential rent was set based on documents sent to DHPD and the size of the apartment.

Petitioner then called Mr. Blerim Shatri, the superintendent of the premises, to testify. He testified that as the superintendent of the building, he is familiar with Mr. Cannon and Ms. Duncan -Ristic who vacated the premises in June 2017. When she returned the key upon vacating the premises, he asked her for the second key and she told him to get it from Mr. Cannon. He then asked her if Mr. Cannon was moving and she responded “ask him.” When he inquired of Mr. Cannon when he was moving, Mr. Cannon informed him that he would be vacating in about one week. He reported this to Ms. Hassan and he later observed Mr. Cannon moving some boxes a few days later.

Mr. Cannon testified that he moved into the subject apartment with Ms. Duncan-Ristic (his ex-wife) and step daughter. He and Ms. Duncan- Ristic signed a lease with riders attached. These riders waived air condition & washer and dryer fees as well as fees for common area amenities. There was no indication if these waivers were limited, temporary or for the term of the tenancy and that he was not informed that the rent would change pursuant to DHCR or HPD guidelines.

Prior to the end of the initial lease, Petitioners sent a notice of renewal however, notice of renewal offered did not include any pages outlining their rights as rent stabilized tenants, nor tenant and landlord obligations. Mr. Cannon further testified that when Ms. Ducan-Ristic moved out in June 2017, he spoke to Ms. Orange and requested a lease in his name only. He was instructed to go to Petitioner's office in Long Island with a security deposit, broker's fee and file a new application. After his conversation with Ms. Orange, he did not speak to anyone else. He could not recall the exact date of the conversation but it was a few days after June 21, 2017. He filed a harassment complaint with the DHCR, a hearing was held and there was no finding of harassment.

Petitioner argues that Respondent is estopped from arguing that the Rent Stabilization Code protections apply to this proceeding since he and Ms. Duncan-Ristic both represented to Petitioner that they were vacating the premises. Furthermore, neither Respondent nor Ms. Duncan-Ristic executed the notice of renewal which were timely served upon them within sixty days as required by 9 NYCRR- § 2523.5(a). Petitioner additionally argues that even if the Court were to find that the lease renewal was invalid and Mr. Cannon and Ms. Duncan-Ristic did not represent to Petitioner that they were vacating, the Court should require Respondent to pay all arrears as a condition of renewal of the lease. Respondent argues that the renewal lease offered was invalid as it included a tenant that was no longer occupying the premises, did not contain the required lease riders, did not have the same terms and conditions as the initial lease and was not sufficiently specific to constitute a valid contract.

The owner of a rent stabilized apartment is required to offer a tenant a renewal lease “on the same terms and conditions as the expired lease.” 9 NYCRR § 2422.5; Century Operating Corp. v. Popolizio, 60 NY2d 483 (1983).

9 NYCRR § 2422.5(a) provides in pertinent part: On a form prescribed or a facsimile of such form approved by the DHCR, dated by the owner, every owner, other than an owner of hotel accommodations, shall notify the tenant named in the expiring lease, not more than 150 days and no less than 90 days prior to the end of the tenant's lease term, by mail or personal delivery, of the expiration of the lease term, and offer to renew the lease or rental agreement at the legal regulated rent permitted for such renewal lease and otherwise on the same terns and conditions as the expiring lease.

The DHCR has promulgated a Rent Stabilization lease rider that describes the rights and duties of owners and tenants as provided under the Rent Stabilization Law and other laws. The owner must attach a copy of the rider to every vacancy lease offered to a new tenant as well as to every renewal lease. NY C. Admin. Code § 26-511d; 9 NYCRR§ 2522.5(c)(1); DHCR Operational Bulletin 85-1 (July, 1985). It is undisputed that the renewal lease offered in this case did not have the requisite lease rider. As Petitioner's notice for renewal of the lease was not in the form “prescribed” or “approved” by DHCR (see, Rent Stabilization Code § 2523.5[a]), and the requisite rider promulgated by DHCR was not attached (see Rent Stabilization Code § 2523.5[c][ii]), this holdover proceeding based upon Respondent's failure to sign the renewal lease does not lie. Haberman v. Neuman, 2003 NY Slip Op 50031(U) (App. Term 1st Dept.).

While the court credits the testimony of Petitioner's witnesses who testified that Respondent and his ex-wife indicated that they were vacating the premises, at some point, Respondent informed Petitioner's agent that he wanted to remain in the apartment and wanted a lease in his name only. It was at that point that Respondent was allegedly informed that he would have to essentially go through the application process as if he were a new tenant. Respondent refused. Petitioner started a non-payment case and when that case was dismissed, Petitioner could have offered Respondent a renewal lease in his name.

Regardless of whether Petitioner thought Respondent and Ms. Duncan-Ristic would both be vacating the apartment, the crucial fact is that the renewal lease that was offered was not under the same terms and conditions as the initial lease and did not include the requisite lease rider. Therefore, Petitioner cannot maintain this holdover proceeding against Respondent for failure to renew that lease since the renewal lease offered was in fact improper. While Petitioner bemoans the fact that Respondent is in arrears in excess of $40,000.00, this is a failure to renew a lease holdover case where the renewal lease offer that forms the basis of the proceeding was improper. This Court has no choice but to dismiss the proceeding as Petitioner has failed to prove its prima facie case, a key element of which is that a proper renewal lease was offered. Petitioner had the opportunity to offer Respondent a renewal lease at any point after he requested one including after the non-payment case was dismissed a year ago but failed to do so.

Accordingly, this proceeding is dismissed without prejudice to Petitioner's claim for all use and occupancy. Petitioner is directed to send Respondent a proper renewal lease in his name within thirty days.

This constitutes the decision and order of the Court.

Copies of this decision and order are being mailed to both parties. The parties may retrieve their evidence from the courtroom.

Maria Ressos, J.

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