SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
February 8, 2011
RESPONDENT, - AND-
"JOHN DOE" AND "JANE DOE",
Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated October 16, 2009.
Gutnick v Ramos
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2011
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
The order granted tenant's motion to dismiss the petition in a holdover summary proceeding.
ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is denied.
In this owner-occupancy holdover proceeding (see Rent Stabilization Code [9 NYCRR] § 2524.4 [a]), tenant moved to dismiss the petition on the ground that the notice of non-renewal was inadequate. The notice of non-renewal stated, in relevant part: "Please be advised that the Landlord/Owner of your apartment above indicated, hereby notify [sic] you that your lease which will expire on 7/31/09 will not be renewed because the Landlord/Owner of the building, below indicated, seeks to recover the apartment for a member of his immediate family (daughter & her family), as their primary residence in the City of New York. Menucha Barber (daughter) who is married to Joseph Barber, have [sic] 2 kids (ages 3 & 1 ½ years old), and currently rent an apartment at [address omitted]." Relying on this court's decision in Giancola v Middleton (21 Misc 3d 34 ), the Civil Court granted tenant's motion, finding the notice inadequate.
After the parties had submitted their briefs on appeal in this case, the Appellate Division, Second Department, reversed this court's decision in Giancola, stating, in pertinent part (73 AD3d 1056, 1057 ): "The petitioners' notice of non-renewal satisfied the requirements of Rent Stabilization Code [9 NYCRR] § 2524.2 (b). The notice identified that the ground for recovery of the apartment was its anticipated use by a member of the petitioners' immediate family, and set forth the date by which the apartment was to be vacated (see Rent Stabilization Code [9 NYCRR] § 2524.4 [a] ; § 2524.2 [b]). The notice also adequately set forth facts necessary to establish the ground for the vacatur, as it identified the petitioners' son, by name, as the immediate family member who would occupy the apartment as a primary residence, and further stated that recovery of the premises for use by the son was sought in good faith (see McGoldrick v DeCruz, 195 Misc 2d 414, 415 ; but see Hirsch v Stewart, 63 AD3d 74 ). Further evidentiary matters are more appropriately explored in discovery or at trial (see McGoldrick v DeCruz, 195 Misc 2d at 415)." Under the standard set forth in Matter of Giancola v Middleton (73 AD3d 1056), the notice of non-renewal in the instant case is adequate. Accordingly, the order is reversed and tenant's motion to dismiss the petition is denied.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: February 08, 2011
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