NUSSBAUM RESOURCES LLC v. GILMARTIN (2004)

Order and final judgment dated February 21, 2003 (Anthony J. Fiorella, Jr., J.) reversed, with $30 costs, and final judgment of possession granted in favor of tenant dismissing the holdover petition.

The stabilized tenant's last renewal lease expired September 30, 2000, and landlord commenced nonprimary residence proceedings.   In response to a complaint by the tenant, DHCR directed on February 9, 2001 that in the event the court proceeding was determined in tenant's favor, “the owner is required to offer a renewal lease for one or two years at the tenant's option.”   Ultimately, the holdover was dismissed on the merits by Civil Court, and this court affirmed.   Rather than offering a renewal lease, landlord served a new notice of nonrenewal in June 2002, stating that “we deem your present tenancy and occupancy to expire September 30, 2002”.   This (second) nonprimary residence proceeding ensued, resulting in a possessory judgment in landlord's favor.

 “A jurisdictional prerequisite to nonrenewal of a stabilized lease on the basis of nonprimary residence is that the landlord have served a notice of nonrenewal during the specified window period prior to the expiration of the existing lease term” (Ansonia Associates v. Rosenberg, 163 A.D.2d 101, 102, 557 N.Y.S.2d 349).   There was no existing lease between the parties at the time landlord served its notice because landlord had failed to comply with DHCR's order requiring an offer of renewal in the event the first proceeding was determined in tenant's favor.   There being no lease extant, there was no basis for a nonprimary residence proceeding (Ansonia v. Rosenberg, supra).   Landlord's commencement of successive proceedings, without affording tenant an opportunity to renew, was unauthorized.   The failure to offer a renewal lease cannot deprive the tenant of any protections or rights provided by the Rent Stabilization Law and Code (Rent Stabilization Code, § 2523.5[d] ).

In light of our disposition, we do not reach the merits of landlord's nonprimary residence claim.

I am constrained by the authority cited in the majority opinion to reverse because there was no existing lease in effect when the landlord served an otherwise proper Golub notice.   The Golub notice served set the expiration date as two years from the expiration of the previous lease and gave the requisite 90-to-150-day window period.

The first nonprimary residence proceeding resulted in a judgment for the tenant after trial which was affirmed on appeal primarily upon the factual findings of the trial court.   The tenant admitted that she had not resided in the subject apartment for almost three years.   The tenant stated that she was in Puerto Rico taking care of her sick mother and that she was going to bring her mother back to New York to live with her.

The landlord commenced a second nonprimary residence proceeding against the tenant after the affirmance by this court when it was ascertained that the tenant had not returned to her apartment.   The trial court found for the landlord upon the tenant's admission that she was still living in Puerto Rico.

The result is that the landlord must offer the tenant a renewal lease for an empty apartment and wait up to two years to commence another nonprimary residence proceeding.   During all this period, a potential tenant is denied a lease to a housing space.

PER CURIAM.

SUAREZ, P.J., and GANGEL-JACOB, J., concur. McCOOE, J., concurs in a separate memorandum.