Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated January 3, 2011.
Georgetown Unsold Shares, LLC v Ledet
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ.
The order denied landlord's motion for leave to conduct discovery and granted tenant's cross motion to dismiss the petition.
ORDERED that the order is affirmed, without costs.
In this holdover summary proceeding to recover possession of a
rent-stabilized apartment on the ground that tenant did not occupy the
apartment as her primary residence (see Rent Stabilization Code [9
NYCRR] § 2524.4 [c]), the record establishes that 120 to 150 days
prior to the April 30, 2010 expiration of the lease, landlord served
upon tenant, by personal delivery at her address in Florida, a notice
advising her of the basis for the non-renewal of her lease. After the
expiration of the lease, landlord accepted rent for the month of May
2010 prior to commencing this proceeding. It is unnecessary, in the
circumstances presented, to determine whether landlord's acceptance of
rent for the month of May 2010, after the April 30, 2010 expiration of
the lease, entitled tenant to a renewal lease or merely created a
month-to-month tenancy (see Martine Assoc., LLC v Donahoe, 11 Misc 3d
129[A], 2006 NY Slip Op 50294[U] [App Term, 9th & 10th Jud Dists 2006]).
If tenant is entitled to a renewal lease, the proceeding fails on that basis.
If she is merely a month-to-month tenant, she was entitled to a 30-day notice (see Real Property Law § 232-a; Weiden v 926
Park Ave. Corp., 154 AD2d 308 ), which was not served. In either
case, the petition must be dismissed.
Accordingly, the order is affirmed.
Weston, J.P., and Aliotta, J., concur.
Rios, J., concurs in a separate memorandum.
Rios, J., concurs in the following memorandum:
In my view, landlord's acceptance of rent for the month of May 2010, after the April 30, 2010 expiration of the lease, entitled tenant to a renewal lease. Upon the expiration of a rent-stabilized lease, the tenancy is either terminated by compliance with the procedural requisites of Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2 and the commencement of a summary proceeding or renewed pursuant to RSC (9 NYCRR) § 2523.5 (see 205 E. 78th St. Assoc. v Cassidy, 192 AD2d 479 ). Landlord's acceptance of the May 2010 rent nullified the April 30, 2010 termination date of the non-renewal notice, thereby ...