Jewish Theological Seminary of America v. Fitzer

• Decision Date: 11 February 1999
• Citation: 685 N.Y.S.2d 215
• Parties: 1999 N.Y. Slip Op. 1374 The JEWISH THEOLOGICAL SEMINARY OF AMERICA, Petitioner-Respondent, v. James FITZER, et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 215

685 N.Y.S.2d 215

1999 N.Y. Slip Op. 1374

The JEWISH THEOLOGICAL SEMINARY OF AMERICA, Petitioner-Respondent, v. James FITZER, et al., Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Feb. 11, 1999.

Magda L. Cruz, for Petitioner-Respondent.

Catharine A. Grad, for Respondents-Appellants.

ROSENBERGER, J.P., LERNER, RUBIN, MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order of the Appellate Term of the Supreme Court, First Department, entered March 4, 1998, which reversed an order of the Civil Court, New York County (Joan Madden, J.), entered March 25, 1998, granting respondents' motion to dismiss the petitions on the ground that the notices of nonrenewal served by petitioner were defective, and which denied the motion and reinstated the petitions, unanimously modified, on the law, to the extent of granting the motion to dismiss to the extent indicated herein, and otherwise affirmed, without costs.

The appropriate test for the adequacy of a notice of nonrenewal "is one of reasonableness in view of all attendant circumstances" (Hughes v. Lenox Hill Hosp., 226 A.D.2d 4, 17, 651 N.Y.S.2d 418, appeal dismissed 90 N.Y.2d 829, 660 N.Y.S.2d 552, 683 N.E.2d 17). Here, a separate rider, incorporated by reference into the notices of nonrenewal, set forth the statutory grounds for nonrenewal by tracking the statutory language of Rent Stabilization Code § 2524.4(b). When taken in conjunction with the factual allegations that were contained in most of the challenged notices, including the allegation that the particular tenant to whom the notice was directed had taken possession of the subject premises subsequent to July 1, 1978 (see, Rent Stabilization Code § 2524.4[b] ), the rider provided the necessary additional information to enable the tenant-respondent to frame a defense and the notice, as a whole, was therefore adequate to meet the tests of reasonableness and due process. However, those nonrenewal notices that did not contain factual allegations stating that the tenants concerned took possession after July 1, 1978 and that did not, either by factual allegation or by reference to the aforementioned rider, afford the affected tenants notice sufficient to enable them effectively to defend their tenancies, were defective and Civil Court's dismissal of the petitions predicated upon such defective notices of non-renewal should have been upheld, and we modify accordingly.