Katz Park Ave. Corp. v. Olden

• Decision Date: 18 May 1993
• Citation: 158 Misc.2d 541,601 N.Y.S.2d 757
• Parties: KATZ PARK AVENUE CORP., Petitioner-Landlord, v. Robert OLDEN, Respondent-Tenant, "John Doe" and/or "Jane Doe", Respondents-Undertenants.
• Court: New York City Court

Page 757

601 N.Y.S.2d 757

158 Misc.2d 541

KATZ PARK AVENUE CORP., Petitioner-Landlord, v. Robert OLDEN, Respondent-Tenant "John Doe" and/or "Jane Doe", Respondents-Undertenants.

Civil Court of the City of New York New York County, Housing Part 18.

May 18, 1993.

Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C. by Carla Seals, New York City, for petitioner-landlord.

Mark Friedlander, New York City, for respondent-tenant Robert Olden.

MICHAEL D. STALLMAN, Judge.

In this holdover summary proceeding, respondent-tenant moves for partial reargument. This motion raises three significant issues: (1) Does a petitioner's failure to serve a proper predicate notice divest the Civil Court of the subject matter jurisdiction to adjudicate a summary holdover proceeding? (2) Must the spouse of the tenant of record be named and served with a "Golub" notice of non-renewal of a lease? (3) Is a spouse of the tenant of record, who is not a signatory to the current lease, a necessary party to a holdover proceeding based upon non-primary residence?

FACTS

Robert Olden and Joan Olden entered into a lease agreement with petitioner dated February 15, 1974 for the subject premises. The lease was repeatedly renewed. Both Robert Olden and Joan Olden signed renewals dated August 31, 1984 and August 13, 1986; however, only Robert Olden signed the renewal dated August 1988.

Petitioner served the Golub notice upon Robert Olden on or about September 19, 1991, which informed him that petitioner would not renew his lease based upon the allegation that Olden did not occupy the apartment as his primary residence. See Golub v. Frank, 65 N.Y.2d 900, 493 N.Y.S.2d 451, 483 N.E.2d 126. The lease expired on January 31, 1992 but Olden did not vacate. Petitioner thereafter commenced this holdover proceeding.

Respondent's second affirmative defense alleges that petitioner failed to name respondent's wife, Joan Olden, as a party; the third affirmative defense alleges that petitioner failed to name and serve Joan Olden with a Golub notice of non-renewal.

Respondent moved, inter alia, to dismiss the proceeding; petitioner cross-moved, inter alia, for an order dismissing various affirmative defenses. By decision and order dated November 24, 1992, this Court, inter alia, dismissed the second and third affirmative defenses; respondent seeks reargument of only that portion of the Court's decision.

I

Movant argues that petitioner's failure to list the respondent's spouse on the Golub notice and to name her as a respondent in this summary proceeding deprives this Court of subject matter jurisdiction.

Respondent has incorrectly characterized these defenses as objections to the Civil Court's subject matter jurisdiction. Subject matter jurisdiction embraces those categories of actions which a court is empowered to adjudicate and those types of remedies which a court is authorized to grant. Subject matter jurisdiction is granted to a court by constitution or statute. Litigants lack the power to grant or deprive a court of subject matter jurisdiction. Gager v. White, 53 N.Y.2d 475, 442 N.Y.S.2d 463, 425 N.E.2d 851; see Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384. This Court clearly has been granted subject matter jurisdiction over summary proceedings to recover possession of real property. See N.Y. Const. Art. VI, sec. 15; Civil Ct. Act sec. 204.

The terms "lack of subject matter jurisdiction" and "jurisdictional defect" each have been used chronically and inaccurately as shorthand. Rather than explaining that a specific pleading defect is so egregious that it should not be subject to amendment, thereby requiring dismissal of the proceeding, courts have used these terms epithetically.

This tendency has flowed from the traditional view that summary proceedings must be strictly construed and the consequent disinclination to permit certain pleading defects to be cured by amendment of the petition, (e.g., failure to allege rent-controlled or stabilized status, multiple dwelling status, existence of a currently effective rent registration statement). Some courts have assumed that under such circumstances, the court never acquired subject matter jurisdiction over the proceeding. See, e.g., Houston Realty v. Castro, 94 Misc.2d 115, 404 N.Y.S.2d 796.

Some courts thus have held that where a petitioner has failed to serve a proper predicate notice (e.g., notice to cure, notice of termination, Golub notice), the proceeding must be dismissed on the grounds that it is "jurisdictionally defective" (Esposito v. Wetzel, 196 Misc. 246, 91 N.Y.S.2d 393; Dowarp Realty Co. v. Acevedo, NYLJ, 4/3/90, p. 26, col. 2; see MSG Pomp Corp. v. Baez, 185 A.D.2d 798, 586 N.Y.S.2d 965); others have concluded that the court lacks or lost subject matter jurisdiction (Jackson v. NYCHA, 88 Misc.2d 121, 387 N.Y.S.2d 38; Papacostopulos v. Morrelli, 122 Misc.2d 938, 472 N.Y.S.2d 284; Carriage Court Inn, Inc. v. Rains, 138 Misc.2d 444, 524 N.Y.S.2d 647; Federal v. Ortiz, 139 Misc.2d 274, 528 N.Y.S.2d 305; Caiado v. Bischoff, 140 Misc.2d 1014, 532 N.Y.S.2d 213; Jackson v. Hertz, N.Y.L.J. 8/19/92, p. 23, col. 3).

This is not a question of semantics: loose, colloquial usage has caused conceptual confusion about the essence of subject matter jurisdiction. See Birchwood Towers # 2 Associates v. Schwartz, 98 A.D.2d 699, 700, 469 N.Y.S.2d 94, citing Rosgro Realty Co. v. Braynen, 70 Misc.2d 808, 334 N.Y.S.2d 962, aff'd sub nom. Grosfeld v. Braynen, 41 A.D.2d 605, 339 N.Y.S.2d 1000; McClelland v. Robinson, 94 Misc.2d 312, 405 N.Y.S.2d 165. Where a court genuinely lacks subject matter jurisdiction, e.g., an action for a permanent injunction improperly brought in the Civil Court (see, Chung v. Kim, 170 A.D.2d 232, 565 N.Y.S.2d 510), the entire action must be dismissed, and may not be brought again in that court, because that court lacks the power to adjudicate such an action. Where a court lacks subject matter jurisdiction to grant a specific remedy, only that request for relief need be denied, and the action can continue, provided that the court is empowered to grant some of the relief sought. See Maloney v. Rincon, 153 Misc.2d 162, 581 N.Y.S.2d 120 (motion for preliminary injunction improperly brought in properly pending Civil Court action).

In contrast, failure to plead and prove a condition precedent, e.g., service of a proper predicate notice, can result in dismissal of the cause of action of which it is an element, but not for reasons of subject matter jurisdiction. See Chinatown Apartments Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312; First Sterling Corp. v. Zurkowski, 142 Misc.2d 978, 542 N.Y.S.2d 899.

However, if a proceeding is dismissed because of only a failure to plead, then a new proceeding, pleading proper service of a proper predicate notice, can be commenced in the same court. See, Century Paramount Hotel v. Rock Land Corp., et al., 68 Misc.2d 603, 327 N.Y.S.2d 695 (failure to adequately set forth circumstances of serving, and substance of, holdover notice). If the court genuinely lacked subject matter jurisdiction, recommencement in the same court would not be permissible.

Service of a Golub notice is a condition precedent to the commencement of a holdover proceeding based upon the ground that the tenant is not using the premises as his or her primary residence. It is an element of petitioner's case, which petitioner must plead and prove. Similarly, the omission of a necessary party may be asserted as a ground for either dismissal or joinder (see CPLR 1001[b]. Neither defense divests a court's preexisting subject matter jurisdiction.

II

At issue here is whether a notice of non-renewal of a rent stabilized lease, based upon the grounds that the tenant is not occupying the premises as his or her primary residence (Golub notice), must be sent to the spouse of the tenant of record and whether the spouse must be individually named in the notice. See Rent Stabilization Code section 2523.5; Golub v. Frank, 65 N.Y.2d 900, 493 N.Y.S.2d 451, 483 N.E.2d 126.

Rent Stabilization Code section 2523.5(a) provides in pertinent part:

On a form prescribed or a facsimile of such form approved by the DHCR, dated by the owner, every owner, other than an owner of hotel accommodations, shall notify the tenant named in the expiring lease not more than 150 days and not less than 120 days prior to the end of the tenant's lease term, by mail or personal delivery, of the expiration of the lease term, and offer to renew the lease or rental agreement at the legal regulated rent ... (emphasis supplied).

Rent Stabilization Code section 2524.4(c) sets forth the grounds for an owner's refusal to renew a lease which include, inter alia, that the housing accommodation is not occupied by the tenant as his or her primary residence. When a landlord refuses to offer a renewal on any of these grounds, section 2524.2(c)(2) requires that the landlord serve a termination notice upon the tenant at least 120 and not more than 150 days prior to the expiration of the lease term.

Section 2520.6(d) of the Code defines "tenant" as "any person or persons named on a lease as lessee or lessees, or who is or are a party or parties to a rental agreement and obligated to pay rent for the use or occupancy of a housing accommodation."

It is undisputed that only Robert Olden signed the last renewal lease. Since the Code defines a "tenant" as a party to a lease or rental agreement, an owner must look to the tenant(s) listed on that last expiring lease agreement in order to determine who is entitled to a renewal lease. It logically follows that only the tenant or tenants listed on the last expiring lease must be given notice that they will not be offered a renewal lease. See Rose Associates v. Bernstein, 138 Misc.2d 1044, 1047, 526 N.Y.S.2d 383.

Since Robert Olden was the only signatory to the most recent renewal lease which expired on January 31, 1992, he was the only person...