Decided on January 13, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 13, 2011
NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
Appeal from an order of the City Court of New Rochelle, Westchester County (John P. Colangelo, J.), dated April 16, 2009, deemed from a final judgment of the same court entered April 29, 2009 (see CPLR 5520 [c]). The final judgment, entered pursuant to the April 16, 2009 order denying tenant's motion to dismiss the petition, awarded possession to landlord in a holdover summary proceeding.
ORDERED that the final judgment is reversed, without costs, the order entered April 16, 2009 is vacated and tenant's motion to dismiss the petition is granted.
Landlord, the proprietary lessee and owner of the shares assigned to the cooperative apartment in question, brought this holdover summary proceeding following service of a one-month notice, alleging that tenant was a month-to-month tenant. It is undisputed that tenant's last rent-regulated lease expired in November 2003, and that no renewal lease has been executed since that time.
Tenant moved to dismiss the petition, arguing, in effect, that she was a long-term rent-regulated tenant, that landlord was obligated to offer her a renewal lease, which he had not done, and that she had never refused to sign a renewal lease. In opposition to the motion, landlord asserted that he sought the apartment for his personal use, and argued that, based on a prior holdover proceeding, it was res judicata that tenant had failed to timely execute a previously offered renewal lease and thus had become a month-to-month tenant. The City Court agreed that it was res judicata that tenant was a month-to-month tenant and granted landlord a final judgment of possession. We reverse.
In the prior holdover proceeding, the previous landlord alleged that tenant had refused to execute a renewal lease. After a non-jury trial, the City Court found that landlord had properly tendered a lease renewal and that tenant had failed to return it. Accordingly, the City Court awarded landlord a final judgment of possession. However, on appeal, this court reversed that final judgment and dismissed the petition (Jessamy v Waltonsteed, 13 Misc 3d 128[A], 2006 NY Slip Op 51742[U] [App Term, 9th & 10th Jud Dists 2006]). "[O]nce a judgment is reversed it ceases to have collateral estoppel effect" (Salton, Inc. v Philips Domestic Appliances and Personal Care B.V., 391 F3d 871, 881 [7th Cir 2004]; see Matter of Hoff, 194 Misc 739 ; see generally 9 Carmody-Wait 2d § 63:484). Thus, the finding in the prior proceeding that tenant had refused to sign a renewal lease cannot be given collateral estoppel effect here. Consequently, landlord was required to serve a notice upon tenant, pursuant to Emergency Tenant Protection Regulations (9 NYCRR) § 2504.3 (b), alleging a ground for eviction under the Emergency Tenant Protection Regulations, such as failure to sign a renewal lease, which ground landlord would then have to allege in the petition and prove. As landlord failed to provide a notice here alleging any such ground, the petition must be dismissed.
Moreover, in our previous decision, this court explicitly noted "that equity may relieve a long-term rent-stabilized tenant of an inadvertent failure timely to sign a renewal lease" (Jessamy v Waltonsteed, 13 Misc 3d 128[A], 2006 NY Slip Op 51742[U]; see also Matter of 210 Realty Assoc. v O'Connor, 302 AD2d 396 ; 199 Apt. Assoc., J.V. v Stafford, 8 Misc 3d 128[A], 2005 NY Slip Op 50962[U] [App Term, 9th & 10th Jud Dists 2005]). Tenant has alleged that she is over 60 years old, has lived in the premises for over 30 years, has always paid her rent, has always followed the rules, has never had any complaints made about her, and has never before refused to sign a renewal lease. Thus, even if the claim that the prior landlord had timely tendered a renewal lease was established, the foregoing allegations by tenant, if undisputed, might well constitute a basis for equitable relief. We also note that landlord's claim that he seeks the premises for his own personal use is not a ground for recovery permitted by General Business Law § 352-eee (2) (c) (ii). Accordingly, the final judgment is reversed, the order denying tenant's motion to dismiss the petition is vacated and tenant's motion to dismiss the petition is granted.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur. Decision