Georgetown Unsold Shares, LLC v. Ledet, 2012-07866
| Decision Date | 17 June 2015 |
| Docket Number | 2012-07866 |
| Citation | 12 N.Y.S.3d 160,2015 N.Y. Slip Op. 05185,130 A.D.3d 99 |
| Parties | In the Matter of GEORGETOWN UNSOLD SHARES, LLC, appellant, v. Arlene LEDET, also known as Arlene Solkoff, respondent-respondent, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Friedman, Harfenist, Kraut & Perlstein, LLP, Lake Success, N.Y. (Neil Torczyner of counsel), for appellant.
Donna Dougherty, Rego Park, N.Y. (Daniel Nkansah–Siriboe of counsel), for respondent-respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
On this appeal, we are asked to determine whether a landlord's acceptance of unsolicited rent in the “window period” between the expiration date of a lease and the commencement of a holdover proceeding nullifies a landlord's previous service of a notice of intention not to renew the lease. We conclude that the acceptance of unsolicited rent in these circumstances does not, by itself, demonstrate an intentional waiver of a previously served notice of intention not to renew the lease and, thus, does not vitiate that notice.
The respondent Arlene Ledet, also known as Arlene Solkoff, has been in continual possession of a rent-stabilized apartment in Queens owned by the petitioner, Georgetown Unsold Shares, LLC, since 1971. On January 5, 2010, Ledet was personally served with a notice of the petitioner's intention not to renew the lease for the rent-stabilized apartment when it expired on April 30, 2010 (hereinafter the nonrenewal notice). The bases for service of the nonrenewal notice were that the apartment was not Ledet's primary residence, that she had not been seen at the residence for several years, and that unknown individuals currently were residing there without the petitioner's permission. The nonrenewal notice additionally advised Ledet that, if she failed to vacate the apartment by April 30, 2010, the petitioner would commence summary proceedings against her to take possession of the apartment.
Ledet did not vacate the apartment as demanded, and instead submitted unsolicited rent checks to the petitioner on May 1, 2010, and June 1, 2010. It is undisputed that both checks were received by the petitioner's managing agent, who deposited them on behalf of the petitioner. The petitioner then commenced the instant summary holdover proceeding, and moved to compel disclosure of, inter alia, Ledet's voter and automobile registration information, which it believed would indicate that she was a resident of Florida. Ledet cross-moved to dismiss the petition on the ground that the petitioner's acceptance of her May and June 2010 rent checks vitiated the nonrenewal notice by virtue of the doctrine of waiver, arguing that since the notice was nullified, the petitioner had failed to fulfill a condition precedent to the commencement of a holdover proceeding under the New York City Rent StabilizationLaw of 1969 (Administrative Code of City of N.Y. §§ 26–501–26–520) and the Rent Stabilization Code (9 NYCRR 2520.1 –2531.9 ). Ledet also argued that the petitioner was not entitled to discovery solely on the basis of an attorney's affirmation because the attorney did not have personal knowledge of the relevant facts.
The petitioner opposed the cross motion, claiming that it did not intend to renew Ledet's lease by accepting the May and June 2010 rent checks. In support of its position, the petitioner submitted an affidavit from a representative of its managing agent, who averred that she deposited Ledet's May and June 2010 checks “in error” in the belief that they represented use and occupancy charges.
In an order dated January 3, 2012, the Civil Court denied the petitioner's motion for leave to conduct disclosure and to compel a response to discovery requests, granted Ledet's cross motion, and directed the dismissal of the petition, concluding that the petitioner's acceptance of rent for May and June 2010 constituted a waiver of the petitioner's right to proceed by way of a holdover proceeding.
In an order dated May 3, 2012, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed the order of the Civil Court. The petitioner appeals, by permission of the Appellate Term. We reverse.
Following World War II, New Yorkers, both within and outside of the City of New York, faced a profound housing shortage. Seeking to address the shortage, legislative bodies in the State of New York enacted laws providing for rent control (see Emergency Housing Rent Control Law [L. 1946, ch. 274, as amended (rent control outside New York City) ]; Local Emergency Housing Rent Control Act [L. 1962, ch. 21, as amended (rent control within New York City) ]; NY City Rent and Rehabilitation Law [Administrative Code of City of N.Y. §§ 26–401 et seq. [rent control within New York City] ). When the housing shortage continued, legislative bodies created a separate and distinct system known as rent stabilization, enacted first by the New York City Council (see New York City Rent Stabilization Law of 1969 [Administrative Code of City of N.Y. §§ 26–501 et seq., as amended [rent stabilization within New York City] ), followed by the New York State Legislature (see Emergency Tenant Protection Act of 1974 [ETPA] § 4, as added by L. 1974, ch. 576, § 4, as amended (rent stabilization outside New York City] ). The New York City Rent Stabilization Law of 1969 was enacted “to prevent speculative, unwarranted and abnormal increases in rents ... which creates a special hardship to persons ... occupying rental housing” (Findings and Declaration of Emergency, Local Laws, 1969, No. 16 of New York City, now codified at Administrative Code of City of N.Y. § 26–501). In promulgating a rent stabilization regime, as opposed to rent control, legislators sought to balance the interests of landlords and of those tenants who occupy their apartments as primary residences (see Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385, 389–390, 618 N.Y.S.2d 857, 643 N.E.2d 479 ). To that end, in 1974 the New York City Council exempted from rent stabilization apartments which are “not occupied by the tenant ... as his or her primary residence, as determined by a court of competent jurisdiction” (Administrative Code of City of N.Y. § 26–504[a][1][f] ). “The purpose of this law is to alleviate the shortage of housing in New York City by returning underutilized apartments to the marketplace for residents who need them ... It is axiomatic that residents of New York City who may be in dire need of affordable housing should be able to obtain such housing before occupants who reside elsewhere and misuse rent-stabilized properties as, for example, warehouses, pieds-à-terre for occasional visits or for other more nefarious purposes” (Katz Park Ave. Corp. v. Jagger, 11 N.Y.3d 314, 318, 869 N.Y.S.2d 4, 898 N.E.2d 17 [Ciparick, J., concurring][citations omitted] ).
Thus, under the New York City Rent Stabilization Law of 1969, and the regulations promulgated by the New York State Division of Housing and Community Renewal to enforce that law, known as the Rent Stabilization Code (see Administrative Code of City of N.Y. §§ 26–511[b], 26–518[a]; 9 NYCRR 2520.1 –2531.9 ), a tenant who continues to pay rent may not be denied a renewal lease or be evicted from a rent-stabilized apartment except when, inter alia, the tenant fails to occupy the subject premises as his or her primary residence (see 9 NYCRR 2524.1 [a]; 2524.4[c] ). No tenant may be removed or evicted from a rent-stabilized apartment, except where the ground for removal or eviction is nonpayment of rent, unless and until the landlord gives at least 90 but not more than 150 days' written notice prior to the expiration of the lease term (see 9 NYCRR 2524.2 [a], [c][2] ). The landlord also must give at least 30 days' notice of its intention to commence an action or proceeding to evict the tenant on the basis that the tenant does not occupy the subject premises as his or her primary residence (see 9 NYCRR 2524.4 [c] ).
The lease to Ledet's rent-stabilized apartment was due to expire on April 30, 2010. On January 5, 2010, or 115 days prior to that date, the petitioner personally served Ledet with a nonrenewal notice that also advised her of its intent to recover possession of her apartment if she did not vacate it. Ledet does not dispute that this combined predicate notice, sometimes referred to as a Golub notice (see Golub v. Frank, 65 N.Y.2d 900, 493 N.Y.S.2d 451, 483 N.E.2d 126 ), was timely served. Rather, she continues to maintain that the receipt and deposit of her two unsolicited rent checks after April 30, 2010, constituted a waiver which vitiated the January 5, 2010, nonrenewal notice.
The specific issue of whether acceptance of unsolicited rent payments after the expiration of a lease for a rent-stabilized apartment, pursuant to a Golub notice, vitiates a landlord's nonrenewal notice is one of first impression in this Court.
“A waiver is the voluntary abandonment or relinquishment of a known right” (Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 ). A known right may not be waived except when there is an intention to do so (see Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d at 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 ). “While waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise” (id. at 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 ). A waiver occurs when there is “such conduct or failure to act as to evince an intent not to claim the purported advantage” (Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136 ).
The issue of whether the acceptance of rent could...
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