Respondent Mayra Jiminez moves for an order to dismiss the proceeding pursuant to CPLR Rule 3211(a)(1), RPAPL § 711(1) and 9 NYCRR § 2503.5 (a) and (b)(2).

Respondent has been a tenant at 128 Guy Lombardo Avenue, Apartment F-4, Freeport, New York for about 27 years. The parties agree that the premises are governed by the Emergency Tenant Protection Act of 1974 (ETPA).

Petitioner commenced a holdover proceeding against Respondent on July 17, 2007, by service of the notice of petition and petition, both dated July 12, 2007. Petitioner alleges that the written lease expired on July 31, 2006. Respondent failed to renew the lease. Paragraph 5 of the petition states:

The respondent was offered a renewal lease by certified mail, return receipt requested at least 90 days and not more than 120 days prior to the expiration of the lease, pursuant to the provisions of the TPR, but they failed to properly and timely renew their lease within sixty (60) days after the offer to renew was served upon them.

The notice of termination of tenancy, dated June 7, 2007, terminated Respondent's tenancy as of July 6, 2007, because Respondent failed to timely renew the lease and the lease in effect expired on July 31, 2006. [*2]

Petitioner apparently sent a lease renewal on April 18, 2006, by certified mail, but the letter was returned as unclaimed. Respondent denies having received the renewal lease or any notice from the Post Office to pick up the certified letter from the Post Office. Respondent further claims that she went to the Petitioner's office in May of 2006, and requested a lease renewal from a secretary who stated that a renewal lease would be sent. In June of 2006, Respondent states that she spoke to one of the owners (not named) about the renewal lease who also indicated that he would have it mailed to Respondent.

Respondent claims that her husband tendered the August 2006 rent, but this was refused.

Instead of proceeding to evict Respondent by a holdover proceeding based upon the grounds of an expired lease, Petitioner proceeded to evict Respondent by service of the holdover notice of petition and petition, both dated August 29, 2006. The verified petition sought termination of the lease based upon violation of the Freeport Code which restricts the number of occupants in the apartment. Paragraph 2 of the petition states:

Respondents are the tenants of the premises, who entered into possession under a written lease agreement between Respondent REYNALDO LINARES as Tenant and Petitioner's predecessor as landlord, which was renewed from time to time, by MAYRA JIMINEZ, until the tenancy was terminated as August 28, 2006 on the ground that Respondent violated a substantial obligation of your tenancy by violating paragraphs 2, 7(A) and 7(B) of your lease, Section 235-f of the Real Property Law, Section 2504.2(c) of the Tenant Protection Regulations, and the Building Code of the Village of Freeport including but not limited to Section 128-20A which limits the number of occupants residing in your apartment based upon its size to 2 persons, and upon information and belief, you have caused your apartment to exceed the legal limit of occupants by having the following 4 people occupy your apartment: Tito Jiminez, Mayra Linares, Prieilia Linares and Reynaldo Linares, as set forth more fully on the Notice to Terminate, annexed hereto and made a part hereof.

The notice of termination of tenancy, dated August 7, 2006, terminated Respondent's tenancy as of August 28, 2006, because of the said Freeport Code violations. The proceeding was subsequently withdrawn on January 3, 2007, "because of compliance," see page 3 of Michael Mason's affirmation in opposition, dated October 16, 2007.

In March of 2007, Petitioner attempted to evict Respondent for nonrenewal, but this was withdrawn because service was ineffective to confer jurisdiction. Thereafter, Petitioner commenced the within proceeding in July of 2007.

Petitioner states that Respondent owes over $11,000.00 in rent arrears which is not denied by Respondent.

Is the Respondent entitled to a renewal lease under the above quoted ETPA section? Did the Petitioner waive the right to bring this holdover proceeding by its failure to timely commence same immediately after the lease allegedly expired in July of 2006? Does the doctrine of election of remedies apply to this case?

The relevant ETPA Code Sections of 9 NYCRR 2503.5 state:

Section 2503.5 Renewal of lease.

(a)On a form prescribed by the division signed and dated by the landlord, every landlord shall notify the tenant in occupancy not more than 120 days and not less than 90 days prior to the end of the tenant's lease term, by certified mail, of such termination of the lease term and offer to renew the lease at the legal regulated rent permitted for such renewal lease and otherwise on the same conditions as the expiring lease, and shall give such tenant a period of 60 days from the date of mailing of such notice to renew such lease and accept the offer. The tenant's acceptance of such offer shall be entered on the designated part of the prescribed form, and returned to the landlord by certified mail. In the event that such 90-day notice expires after the expiration of the lease, the provisions of subdivision (b) of this section shall govern.

(b)

(1) Where the owner fails to offer a renewal of the lease in accordance with subdivision (a) of this section, the tenant shall have the option of choosing:

(I) whether the one- or two-year term of such lease whenever it is offered shall commence on the date a renewal lease would have commenced had a timely offer been made; or

(ii) on the first rent payment date commencing 90 days after the date that the owner does offer the lease to the tenant on the prescribed notice form. The guidelines rate applicable in such cases shall be the rate in effect on the first day subsequent to the expiration of the last lease or the rate in effect when the lease is renewed; whichever is lower.

(2) Where the tenant fails to timely renew an expiring lease or rental agreement offered pursuant to this section, and remains in occupancy after expiration of the lease, such lease or rental agreement may be deemed to have been renewed upon the same terms and conditions, at the legal regulated rent, together with any guidelines adjustments that would have been applicable had the offer of a renewal lease been timely accepted. The effective date of the rent adjustment under the deemed renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner. [*4]

(3) Notwithstanding the provisions of paragraph (2) of this subdivision, an owner may elect to commence an action or proceeding to recover possession of a housing accommodation in a court of competent jurisdiction pursuant to sections 2504.2(f) and 2504.3(d)(1) of this Title, where the tenant, upon the expiration of the existing lease or rental agreement, fails to timely renew such lease in the manner prescribed by this section.

(c) Notwithstanding any other provision of these regulations, the failure to offer a renewal lease shall not deprive the tenant of any benefit under these regulations.

This Court holds that Petitioner waived its right to bring the within holdover proceeding by commencing the prior proceeding for overcrowding in August of 2006, after the lease expired on July 31, 2006. Petitioner offers no explanation for its failure to proceed on the lease expiration grounds instead of the overcrowding allegations. The notice of termination of tenancy, dated August 7, 2006, served with respect to the overcrowding allegation, terminates Respondent's tenancy as of August 28, 2006. This position is completely in contravention of the claim now being asserted by Petitioner that Respondent's tenancy ended July 31, 2006, for failure to renew the lease.

Petitioner's conduct constitutes a waiver of its right to assert a failure by Respondent to renew its lease by electing to pursue a different remedy. In Rasch's Landlord & Tenant, Hon. Robert F. Dolan writes:

§ 23:14. Landlord's Election of Remedies for Breach

A landlord has the option of exercising his reserved right to forfeit a lease for breach of condition, or to waive such forfeiture.

The foregoing waiver principal is discussed in Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, Section 15:508, wherein the following is stated:

§ 15:508 Waiver and estoppel

When warranted by the facts and circumstances, a tenant may assert that the landlord "waived" the default upon which the holdover proceeding is predicated. A waiver is generally defined as the voluntary relinquishment or abandonment of a known right.

Certainly, the above authorities support the determination by this Court that Petitioner has waived any basis to commence this proceeding and thus is estopped because of its prior inconsistent positions.

In addition, Respondent claims that she did not receive the lease renewal. The evidence demonstrates that Respondent was sent the renewal lease, but this went unclaimed. Respondent attempted to obtain a renewal lease twice and also offered to pay the August rent, but all attempts [*5]were rebuffed by Petitioner's conduct. In ATM Four v. Urrutia, 16 Misc 3d 1103, 841 NYS2d 825, 2007 WL 1792954 (NY Dist Ct), this court held that Respondent was entitled to receive a renewal lease even though the renewal lease sent by certified mail was also unclaimed. The facts in ATM Four demonstrated that Respondent continued to pay rent and occupied the apartment. In the case at bar, Respondent has demonstrated a like intent of wanting to renew the lease by her conduct of asking for a new lease and offering to pay the August rent.

In ATM Two v. Ramos, 189 Misc 2d 770, 735 NYS2d 370, 2001 NY Slip Op 21505, (NY Dist Ct), Judge Gartner held that the Respondent was entitled to a renewal lease when the certified letter went unclaimed and the Respondent demonstrated an intent to renew the lease:

In the instant case, where Dennis Ramos put forth sufficient evidence to rebut the usual presumption of receipt upon mailing; where (as in the Hochstadt and Farchestesr cases) he actually spoke to a representative of the landlord during the 60-day period for renewal and expressed a desire to remain at whatever rent was required; and where despite this contact, the lease renewal offer which had been returned to the landlord as "unclaimed" was not mentioned or turned over to him, all the conditions have been met for the tenant's failure to be excused, and for the tenant to be entitled to a permanent "stay" of any judgment and warrant for purpose of executing a renewal.

In 56 MAC D Inc. v. Andria, 3 Misc 3d 1105, 787 NYS2d 682, 2003 WL 23526879 (NY City Civ Ct, 2003), the court set forth the principal that forfeitures of leases are disfavored by the courts and equity will prevent an injustice:

It is well-settled equitable principle that Courts do not look favorably upon the forfeiture of leases. Sharp v. Norwood, 223 AD2d 6 (1st Dep't 1996) aff'd 89 NY2d 1068 (1997); see also, 57 East 54th Realty Corp. v. Gay Nineties Realty Corp., 71 Misc 2d 353 (AT 1st Dep't 1972); 220 West 42nd Assoc. v. Cohen, 60 Misc 2d 983 (AT 1st Dep't 1969). In particular, forfeitures are disfavored in relation to rent regulated tenancies. Jillandrea Realty Assoc. v. Brown, 10/18/84 NYLJ 11:1 (AT 1st Dep't); Second 82nd Corp v. Shapiro, 5/26/83 NYLJ 4:3 (AT 1st Dep't); 5700-5900 Arlington Ave. Assoc v. Dogan, 135 Misc 2d 338 (Civ. Ct. Bx Cty 1987); Haley v. Clayton, 106 Misc 2d 739 (Civ Ct NY Cty 1980). Equity will intervene to prevent a forfeiture arising out of a tenant's neglect or inadvertence in failing to timely exercise an option, especially where a landlord is not harmed by the delay in giving the notice and the tenant would sustain a substantial loss. Jilliandrea Realty Assoc. v Brown, supra.

Respondent is a tenant of at least 27 years and it would be unjust to evict Respondent under these circumstances. Equity dictates that a forfeiture not occur based upon the foregoing. Respondent is entitled to a renewal lease and Petitioner shall provide same to her forthwith.

Based upon the above, ETPA Section 9 NYCRR 2503.5(a)(2) provides Respondent a right for a renewal lease.

The within holdover proceeding is dismissed with prejudice. Respondent is entitled to a renewal lease which shall be promptly provided to Respondent by Petitioner.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:December 6, 2007

CC:Nassau/Suffolk Law Services Committee, Inc.

Mason & Mason, P.C.