6, 1999, served Renzulli with a termination notice that stated "You have
elected not to renew your lease, as offered by your landlord, which will
expire on September 30, 1999." Renzulli Aff., Ex. G. Renzulli nonetheless
sent a rent check for October and South
Park accepted it. See Renzulli Aff., Exs. I & J.
As noted above, the parties have now each moved for summary judgment.
A. Subject Matter Jurisdiction
Federal district courts have original jurisdiction over civil matters
where the amount in controversy exceeds $75,000 and there is complete
diversity of citizenship between the parties. See 28 U.S.C. § 1332
There is no dispute that complete diversity of citizenship exists in
the present case. However, the tenant alleges that the $75,000 amount in
controversy requirement has not been met, and the landlord responds that
the apartment has a fair market value in excess of $1,000,000. See
Rosefielde Aff. at ¶ 3.
Where a defendant disputes the existence of diversity jurisdiction
based upon the amount in controversy, "it must appear to a legal
certainty that the claim is really for less than the jurisdictional
amount to justify dismissal." Tongkook America, Inc. v. Shipton
Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (citing St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845
(1938)). "The party asserting diversity jurisdiction in federal court has
the burden of establishing the existence of the amount in controversy,"
Lupe v. Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir. 1994);
however, the burden is only to show a "reasonable probability' that the
claim is in excess of the statutory .jurisdictional amount." Tongkook, 14
F.3d at 784.
Plaintiff alleges that the value of the apartment if vacant or rent
destabilized would exceed $75,000. See Complaint, at ¶ 3. Renzulli
does not deny this allegation, but rather contends that the amount in
controversy requirement is not met because plaintiff is not seeking
damages over $75,000, or alternatively, that plaintiff has no proof to
support the allegation that the increase in value would exceed $75,000.
A plaintiff need not seek monetary damages in order to meet the
jurisdictional requirement. The value of property free from rent
regulation can constitute the amount in controversy. See Eisen v.
Eastman, 421 F.2d 560, 566-67 (2d Cir. 1969) (citing McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 181, 56 S Ct. 780, 80 L.Ed. 1135
(1936) and Kroger Grocery & Baking Co. v. Lutz, 299 U.S. 300, 301, 57
S.Ct. 215, 81 L.Ed. 251 (1936)). In Eisen, a landlord sued the New York
City Rent and Rehabilitation director, challenging the director's
decision to reduce the maximum rents chargeable. Defendant moved for
dismissal on several grounds, one of which was failure to meet the amount
in controversy requirement. The Second Circuit wrote that "the complaint
can be considered to put into controversy the value of the two buildings
free from rent control as against being bound by it, or at least their
value before and after the rent reduction order." 421 F.2d at 566. By
alleging that the value of the apartments at issue free from rent control
would exceed $75,000, South Park satisfies the jurisdictional amount
That is not the end of the matter, however, for "where, as here,
jurisdictional facts are challenged, the party asserting jurisdiction
must, support those facts with "competent proof and "justify [its]
allegations by a preponderance of evidence.'" United Food & Commercial
Workers Union, Local 919 v. CenterMark Properties, 30 F.3d 298, 306 (2d
Cir. 1994) (citing McNutt, 298 U.S. at 189, 56 S.Ct. 780). South Park has
submitted the affidavit of Alan Rosefielde, the manager of South Park,
who writes that "the fair market rental of apartment 11/12B, & 120, if it
were destabilized, would be in excess of $10,000.00 per month," and that
market value of apartment 11/12B, & 120 without Ms. Renzulli as a tenant
is in excess of $1,000,000.00." Rosefielde Aff., at ¶¶ 2-3. Defendant
objects to the sufficiency of proof, but does not actually challenge the
validity of these figures. Although Rosefielde did not detail how he
arrived at the $1,000,000 figure, it cannot be said "to a legal
certainty," Tongkook, 14 F.3d at 784, that the apartments would not, if
free from rent control, sell for more than $75,000 in New York City's
real estate market.*fn1 Accordingly, that part of defendant's motion
seeking summary judgment on the grounds of lack of subject matter
jurisdiction is therefore denied.
B. Termination of the Tenancy.
This Court now turns to the merits of the motions. Summary judgment may
be granted "only when the moving party demonstrates that "there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77,
79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S Ct. 2548, 91 L.Ed.2d 265 (1986). The
district court must "view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in its favor, and may
grant summary judgment only when "no reasonable trier of fact could find
in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (citations
omitted) (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d
1. Plaintiffs termination letter was inadequate.
Pursuant to New York law, a landlord's termination notice must state
the legal ground upon which it relies, "the facts necessary to establish
the existence of that ground," and the eviction date. See 9 N.Y.C.R.R.
§ 2524.2(b). Failure to provide an adequate termination notice bars
eviction proceedings. See 9 N.Y.C.R.R. § 2524.2(a). "A termination
notice is insufficient to serve as a predicate for an eviction proceeding
[where it] "merely recite[s] the legal ground for the eviction, but
fail[s] to set forth any of the facts upon which the ensuing ...
proceeding would be based.'" Berkeley Associates Co. v. Camlakides,
173 A.D.2d 193, 194, 569 N.Y.S.2d 629 (1st Dept. 1991) (quoting First
Sterling Corp. v. Zurkowski, 142 Misc.2d 978, 542 N.Y.S.2d 899 (1989));
see Bellstell 140 East 56th Street v. Layton, 180 Misc.2d 25,
687 N.Y.S.2d 536 (1999).
In Berkeley, the First Department held that simply stating "you do not
occupy the Premises as your primary residence" was not a statement of
facts supporting the grounds for nonrenewal. Examples in Berkeley of the
kind of facts that do satisfy the requirements of Rent Stabilization Code
§ 2524(b) included: "the fact that the tenants had a vehicle
registered in Ridge, New York, the fact that the building staff and
management had not seen the tenants using or occupying their apartment
for an extended amount of time, the fact that the tenants own property in
Florida, the fact that one of the tenants lists Palm Beach as the legal
address on her New York State Driver's License."
South Park's termination notice offered as the legal grounds for
eviction the statement that "You have elected not to renew your lease, as
offered by your landlord, which will expire on September 30, 1999."
Renzulli Aff., Ex. H. Although this is a valid ground for an eviction
pursuant to the Rent Stabilization Code, 9 N YC.R.R. § 2524.3(f), the
notification did not state any facts necessary to establish the validity
of this claim, such as the date on which the renewal lease was sent and
whether the tenant signed and returned it.
Accordingly, South Park's failure to state the factual basis for the
termination in the termination notice bars eviction proceedings.
2. Plaintiffs stated reason for termination was inadequate.
Moreover, the stated grounds for this termination were inadequate.
Pursuant to New York law, a landlord may not evict a tenant of a rent
controlled apartment except for cause, the grounds for which are
enumerated at 9 N.Y.C.R.R. § 2524.3. Those grounds include a tenant's
refusal to renew an expiring lease. See 9 N YC.R.R. § 2524.3(f).
A renewal lease must, however, contain "the same terms and conditions
as the expiring lease." See 9 N.Y.C.R.R. § 2523.5(a). If this
condition is not satisfied, the tenant's refusal to sign the renewal
lease does not provide cause for the landlord to evict. See 9 N.Y.C.R.R.
§ 2424.3(f); see also Goldberg v. Goris, New York Law Journal, Nov.
19, 1986, at 7, 14 Housing Court Reporter 364A (N.Y.Civ.Ct., N.Y.Co.);
945 St. Nicholas Tenants League v. Agarwal, New York Law Journal, January
16, 1991, at 22, 19 Housing Court Reporter 22A (N.Y.Civ.Ct., N YCo.); 255
Eastern Pkwy Assocs. v. Lumpkin, New York Law Journal, October 26, 1994,
at 32, 22 Housing Court Reporter 615A (N.Y. Civ.Ct., Kings Co.).
South Park failed to comply with the requirements of section 2523.5(a)
when it altered the commencement and rent due dates. Renzulli objected to
this change of the terms and conditions, saying that it would cause
"confusion," possibly leading to late payments or double payments.
Renzulli has been paying rent due on the 1st of the month for over thirty
years. See Renzulli Aff., at ¶ 9. South Park asserts that it chose a
date in the 120-150 day window in which a new lease term can commence
pursuant to the terms of the official, mandatory, Lease Renewal Form
(RTP-8). See Plaintiffs Memorandum in Further Support, at 4. The first
day of the month would have also satisfied this requirement. Regardless
of the likelihood of such a change actually causing any "confusion," or
whether the new dates are within the terms of the official Lease Renewal
Form, the fact is that the renewal lease did not contain "the same terms
and conditions as the expiring lease."
3. Plaintiff Vitiated Any Termination Notice.
Even if South Park's grounds for and notice of termination were legally
adequate, its subsequent decision to accept rent for October waived any
prior termination. Pursuant to New York law, a landlord's acceptance of
rent after the expiration of a tenancy waives the termination notice.
See, e.g., Roxborough Apartment Corp. v. Becker, 176 Misc.2d 503,
673 N.Y.S.2d 814 (1998); Manocherian v. Williams, 118 Misc.2d 212,
459 N.Y.S.2d 1010 (1983); Atkinson v. Trehan, 70 Misc.2d 614,
334 N.Y.S.2d 293 (1972); BG Smith Real Estate v. Byrne, 3 Misc.2d 559,
112 N.Y.S.2d 893 (App. Term 1st Dept. 1952); Bagiuski v. Lysiak,
154 Misc.2d 275, 594 N.Y.S.2d 99 (1992).
Renzulli sent, and South Park accepted, rent cheeks for two months
after the termination notice. See Renzulli Aff., at ¶ 5, Ex. I & J.
The first check covered the last month of her old lease up to the date of
the purported termination, September 30, 1999. It was the acceptance of
the check covering the rent for October after the tenancy was purportedly
terminated that constituted a waiver of the termination notice. South
Park never returned the check nor alleged that its acceptance was
inadvertent. Acceptance of rent for a period subsequent to the expiration
of the lease is "inconsistent with an intention to evict the tenant" and
constitutes a waiver of any termination notice. Manocherian, 118 Misc.2d
at 215, 459 N.Y.S.2d 1010.
For the reasons set forth above, this court has subject matter
jurisdiction over this action. Because plaintiff failed to give adequate
notice of termination to Renzulli, failed to offer legally sufficient
grounds for termination, and waived any termination by accepting
subsequent rent payments, defendant's motion for summary judgment is
granted and the complaint is dismissed.