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Hirsch v. Stewart

April 23, 2009

MORTON M. HIRSCH, PETITIONER-APPELLANT,
v.
ELAINE STEWART, RESPONDENT-RESPONDENT, "JOHN DOE" AND "JANE DOE," RESPONDENTS.



Petitioner appeals from an order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about May 23, 2007, which affirmed an order of the Civil Court, New York County (Maria Milin, J.), entered on or about May 17, 2006, granting respondent Elaine Stewart's motion to dismiss the holdover petition.

The opinion of the court was delivered by: Mazzarelli, J.P.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Angela M. Mazzarelli, J.P., David B. Saxe, David Friedman, Rolando T. Acosta and Leland G. DeGrasse, JJ.

Index 104471/05

On this appeal we must determine whether Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2(b) requires an owner who seeks to occupy an apartment for his own use, pursuant to RSC 2524.4(a), to state the facts underlying his decision in the non-renewal notice.

Appellant landlord is the owner of the building known as 459 West 43rd Street. Respondent has been a rent-stabilized tenant in apartment 1A in the building for nearly 30 years. In July 2005, the landlord served a notice on the tenant advising her as follows:

"PLEASE TAKE NOTICE, that your lease...will expire on October 31, 2005, and that your tenancy is hereby terminated as of October 31, 2005. Furthermore, the landlord will not renew your lease based upon the fact that the Landlord seeks possession of [the apartment] for the Landlord's own use. The Landlord seeks to recover possession of [the apartment] for the personal use and occupancy of himself as his primary residence in the City of New York."

The tenant did not vacate the premises and the landlord commenced a holdover proceeding in Housing Court. Respondent moved to dismiss the petition, arguing that the notice contravened RSC 2524.2(b), which provides:

"Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession" (emphasis added).

The tenant argued that the notice was jurisdictionally defective because it merely stated the ground for termination by tracking the language of RSC § 2524.4(a)(1). That section permits an owner to terminate a tenancy where he "seeks to recover possession of a housing accommodation for such owner's personal use and occupancy as his or her primary residence in the City of New York and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York..."

The tenant asserted that the plain language of RSC 2524.2(b) required the landlord to give a fact-based explanation of why the landlord was choosing to rely on that ground.

In opposition to the motion, the landlord argued that the notice as served was sufficient. He claimed that it was proper for an "owner's use" notice to simply track the language of RSC 2524.4(a). This, he argued, is because an owner establishes the existence of the "owner's use" ground simply by asserting that he intends to use the apartment for personal use as his primary residence. The landlord maintained that any additional facts in his notice would have been superfluous. He also posited that the tenant should have simply engaged in discovery, instead of moving for dismissal. By doing so, the landlord argued, the tenant would have learned that the landlord has an office in the building on the same floor as the apartment, and that the landlord desired to move into the apartment to shorten his commute to work.

The Housing Court granted the tenant's motion and dismissed the petition. It agreed with the tenant that the landlord's notice of non-renewal merely tracked the language of RSC 2524.4(a) and that a recitation of the facts motivating the landlord's desire to occupy the apartment was required. Appellate Term ...


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