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160 EAGLE STREET, LLC, Petitioner–Landlord, v. Larry BUTLER and Merle Nadlin–Butler, Respondent–Tenants.

No. 072128/2017.

Decided: November 06, 2017

Bedford Soumas LLP, New York, for Petitioner. Fishman Rozen LLP, New York, for Respondent.

Recitation, as Required by CPLR Section 2219(A), of the Papers Considered in the Review of this Motion:


Petitioner commenced this holdover proceeding seeking possession of the subject rent stabilized apartment, 2L, at 160 Eagle Street, Brooklyn, N.Y. 11222 based on the claims in the predicate notices. The Combined Notice of Non–Renewal and Notice of Termination of Leasehold states in part:

Please Take Notice, that pursuant to the Rent Stabilization Code (“Code”), Sections 2524.2 and 2524.4(c) the owner and landlord of the Subject Premises, Thomas Marasciullo (“Landlord”), does not intend to renew your lease for the above referenced Subject Premises which shall expire on May 31, 2017 because the Subject Premises is not occupied as the tenants' primary residence.

Please Take Further Notice, that your tenancy shall be terminated on May 31, 2017 as upon information and belief, you are not living in the Subject Premises and/or you are living at 30 Warford Terrace, Orinda, CA 94563 and/or 4833 Park Boulevard, Oakland, CA 94602.

Please Take Further Notice, that pursuant to Section 55 of Chapter 403, Laws of 1983, and Section 2524.4(c) of the Code, the Landlord intends to commence an action or proceeding seeking to recover possession of the Subject Premises on the grounds that the Subject Premises is not occupied by the tenants as the tenants' primary residence.

Respondent moves by notice of motion pursuant to CPLR 3211(a)(1) and 3211(a)(7) for a pre-answer dismissal of the petition based on his claims that petitioner failed to satisfy a condition precedent as required by the Rent Stabilization Code (Code) sections 2524.2, and 2524.4, as it is undisputed there is no initial vacancy lease. Petitioner opposes the motion in all respects.

The relevant facts are not in dispute. The first and only lease between the parties (the respondent Larry Butler and the prior owner, Helen Krolewski) is a renewal lease dated April 15, 2015. The parties have different versions of this renewal lease. Respondent's renewal lease is between respondent Larry Butler and owner Krolewski, and it is a two year renewal lease. Petitioner's renewal lease, also dated April 15, 2015, lists the tenant at the top of the lease as Larry Butler, and Krolewski as owner. The signature lines have an additional signature for respondent Merle Nadlin–Butler, who is not listed as a tenant at the top of the lease .1

There is no dispute that this renewal lease, on a DHCR renewal lease form, is the only lease between the parties. It is undisputed that no riders were attached to the renewal lease. Respondents were never given an initial, first rent stabilized lease with the riders required by the DHCR. It is undisputed that the renewal lease, dated April 15, 2015, has no riders as required by DHCR.

Respondents argue that without an original rent stabilized lease with the required riders, the “window period” for service of a Golub Notice never commenced.Respondents state that because there is no initial rent stabilized lease between the parties, and respondents were never served with the required rent stabilized lease rider giving notice of the RSC primary residence requirement, the petition should be dismissed.

In opposition petitioner argues that the renewal lease as the initial lease, and only lease between the parties, satisfies the RSC. Petitioner states that the renewal lease is valid despite the landlord failing to provide the requisite riders upon execution of the lease. The DHCR Fact Sheet petitioner relies on refers to an owner's failure to serve riders with a lease.


A tenant cannot waive their rights under the RSC. The rent stabilization code provides, “an agreement by the tenant to waive the benefit of any provision of the Rent Stabilization Law or this Code is void ․” RSC, 9 NYCRR 2520.13 A tenant cannot waive their rights under the RSC and any agreement that does, is null and void and of no force and effect on the ground that it violates the code and law. It is contrary to public policy. Riverside Syndicate, Inc. v. Munroe, 10 NY3d 18, 22, (2008).

A valid rent stabilized lease must state the rights and remedies of the parties. The renewal lease that petitioner relies on for the Golub Notice and termination of the rent stabilized tenancy is not in compliance with the RSC. It is undisputed there is no initial rent stabilized lease between the parties, and respondents never received any informational riders as required by the DHCR. The renewal lease is, in effect, a renewal of no agreement between the parties, as there is no rent stabilized lease to renew. The renewal lease is a nullity as the tenants cannot waive their rights and obligations under the RSC. It is contrary to public policy to permit the landlord to terminate the tenancy through a Golub Notice without a valid rent stabilized lease in effect.

The DHCR fact sheet number 5 states in part:

When a person rents a rent stabilized apartment for the first time, the owner and the tenant sign a VACANCY LEASE. This written lease is a contract between the owner and the tenant which states the terms and conditions of the lease, including the length of the lease, and the rights and responsibilities of the tenant and the owner.

The Rent Stabilization Law gives the new tenant (also called the vacancy lease tenant) the choice of a one or two year lease term. With the lease, a tenant should receive a Rent Stabilization Lease Rider/Addenda that states how the rent was computed and asserts that any increases comply with the Rent stabilization Law and Code.

RSC 2522.5(c)(1) states the requirements of a lease rider and notice of rights for vacancy and renewal leases. Subsection (I) refers specifically to vacancy leases, and states additional requirements for riders with vacancy leases to apprise the tenant of his or her rights and obligations under the RSC. 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. The rider must be in larger type than the lease. Owners must attach a copy of the rider to every vacancy lease to provide the tenant with the rules and regulations governing the tenancy. NYC Administrative Code 26–511d, 9 NYCRR 2522.5(c)(1)

The RSC and law are meaningful legislation providing protections to tenants to maintain affordable housing in NYC, as well as protections and remedies for owners. The RSL and Code are not merely superficial rules and regulations that can be ignored or circumvented by either side without consequence. A renewal lease incorporates the terms and conditions of the vacancy lease. The first “vacancy” lease contains terms, rights and obligations required by law. The parties cannot waive their respective rights and obligations under the RSC. There are no terms and conditions, rights or obligations under the RSC that are being renewed in the parties' “renewal” lease. There is nothing to be renewed. The Golub Notice terminating this rent stabilized tenancy is not valid.

Therefore, based on the foregoing, the respondents' motion to dismiss is granted, and the petition is dismissed. This constitutes the decision and order of the court.


1.  Respondent's lease is for apartment 2R, and petitioner's version of the renewal lease is for apt. 2L. It is undisputed that respondent has only resided in 2L.


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