Hirsch v. Stewart

• Decision Date: 23 April 2009
• Docket Number: 5000.
• Parties: MORTON M. HIRSCH, Appellant, v. ELAINE STEWART, Respondent, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

63 A.D.3d 74

877 N.Y.S.2d 285

2009 NY Slip Op 03107

MORTON M. HIRSCH, Appellant, v. ELAINE STEWART, Respondent, et al., Respondents.

5000.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 23, 2009.

Silversmith & Veraja, LLP, New York City (Robert G. Silversmith and Rachel A Siskind of counsel), for appellant.

Housing Conservation Coordinators, Inc., New York City (Susan K. Crumiller of counsel), for respondent.

OPINION OF THE COURT

MAZZARELLI, J.P.

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 nonrenewal 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 nonrenewal 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 unanimously affirmed, and this Court granted the landlord's motion for leave to appeal.

This Court has interpreted RSC § 2524.2 (b)¹ pursuant to its "plain language" and held that it must be "enforce[d] ... as written" (Berkeley Assoc. Co. v Camlakides, 173 AD2d 193, 195 [1991], affd 78 NY2d 1098 [1991]). Thus, in Berkeley Assoc. Co. this Court affirmed the dismissal of a holdover petition in a nonprimary residence case, stating that the assertion in the notice that the tenants "`do not occupy the Premises as [their] primary residence' simply stated the ground for the non-renewal. It was not a statement of facts supporting that ground." (id. at 194).

Similarly, where the owner is seeking to recover possession of an apartment for his own use and asserts only that he intends to occupy the apartment as his primary residence, he is "simply stat[ing] the ground for the non-renewal." Under Berkeley Assoc. Co., that notice would be insufficient.

However, the landlord in this case asserts that Berkeley Assoc. Co. is inapplicable in an "owner's use" case because, he argues, unlike the case of a nonprimary residence, the facts supporting a decision not to renew a tenancy based on "owner's use" are, by necessity, the same as the "ground" for nonrenewal. In other words, the landlord maintains that all that an owner must establish to avail himself of the "owner's use" ground is his intention to recover the apartment for his own use, and to use it as his primary residence. He contrasts this with the nonprimary residence ground, which he notes depends on a showing of facts supporting the owner's allegation that the tenant does not primarily reside in the apartment. Indeed, the landlord claims that it is impossible to provide factual support in an "owner's use" notice because an owner's intent is "a state of mind not necessarily susceptible to a statement of facts."

This argument ignores the plain language of section 2524.2 (b), which does not differentiate among the various types of grounds for terminating a lease. Rather, that section requires a statement of the ground and the facts underlying the ground in "[e]very notice to a tenant to vacate or surrender possession of a housing accommodation" (emphasis added). It does not create any exceptions for grounds which may or may not be "fact-intensive."

Moreover, the landlord's position is belied by his own statement in his affidavit opposing the tenant's motion to dismiss the petition. There he identified the facts behind his intent to occupy the apartment, that is, the proximity of the apartment to his office and his desire to live closer to where he worked. Those were precisely the types of facts required by section 2524.2 (b) and which, if proven, "establish the existence of such ground" (id.).

The landlord also asserts that when DHCR amended the Rent Stabilization Code in 1987 it tacitly negated any requirement that the notice of nonrenewal in an "owner's use" case state facts which, if proven, suggest that the owner is acting in good faith. This argument arises from the omission of the words "good faith" in RSC § 2524.4 (a) (1), the analog to section 54 of the "Old Code."² Section 54 (B) required a landlord to serve a notice before declining to renew a lease where, among other things, "[t]he owner seeks in good faith to recover possession of a dwelling unit for his [or her] own personal use and occupancy or for the use and occupancy of his [or her] immediate family" (emphasis added). The landlord also argues that his position is supported by RSC § 2524.4 (a) (5), which had no precursor in the Old Code. It provides that

"[t]he failure of the owner to utilize the housing accommodation for the purpose intended after the tenant vacates, or to continue in occupancy for a period of three years, may result in a forfeiture of the right to any increases in the legal regulated rent in the building in which such housing accommodation is contained for a period of three years, unless the owner offers and the tenant accepts reoccupancy of such housing accommodation on the same terms and conditions as existed at the time the tenant vacated, or the owner establishes to the satisfaction of the DHCR that circumstances changed after the tenant vacated which prevented the owner from utilizing the housing accommodation for the purpose intended, and in such event, the housing accommodation may be rented at the appropriate guidelines without a vacancy allowance."

The amendment, the landlord posits, reflects DHCR's realization that an owner's good faith cannot be tested at the time the owner notifies a tenant that he or she intends to occupy an apartment but can only be divined in retrospect, after possession is recovered. This position is purely speculative and the landlord offers no support for it in the legislative history or anywhere else. Moreover, at the same time, the landlord acknowledges that an owner claiming "owner's use" is required to demonstrate his or her good faith at the trial of a holdover proceeding before recovering possession. These two positions are diametrically opposed and the landlord makes no attempt to reconcile them. Indeed, the landlord's interpretation of the Code and the case law would permit a legal sleight of hand whereby an owner could conceal the basis for a desire to occupy an apartment until a trial is already in full pitch. Such "trial by ambush" would cut against every notion of fairness found in this State's jurisprudence.

The landlord's interpretation of the amended Code section is unpersuasive for several other reasons. First, nothing in section 2524.4 (a) addresses the requirements for a notice of non-renewal. Second, this new section is merely a re-working of the Old Code section. The words "good faith" have been removed from the language identifying the grounds in RSC § 2524.4 (a) (1). However, the concept that the owner must act in good faith is clearly embodied in the language of RSC § 2524.4 (a) (5) and accepted by all parties.

The argument that the penalties imposed by RSC § 2524.4 (a) (5) were intended as the sole...