Petitioner, Green 333 Corp., commenced this licensee holdover proceeding in January 2010 against respondent, Sanford Kwinter, concerning 422 West Broadway, Apartment 3, in New York County. Respondent has resided in the subject premises, a private two-story apartment, since 1982. Respondent's wife and young children currently reside with him. Petitioner bought the subject building in 2005. In 2007, Loft Board Order No. 3333 established that the subject premises are subject to the Rent Stabilization Law (RSL) and directed petitioner to issue a residential lease consistent with the RSL. Respondent contends that petitioner failed to give him an RSL-conforming lease. Petitioner elected to cancel respondent's tenancy as a result of respondent's supposed failure and refusal to execute the initial rent stabilized lease dated August 1, 2008.

Petitioner or its predecessors have commenced seven prior summary proceedings and one pending action the New York County Supreme Court against respondent since 2001. In an earlier nonpayment proceeding, L & T Index No. 074010/08, the Honorable Thomas Fitzpatrick found that "respondent has rejected the standard form rent stabilized lease offered by petitioner, and that there is currently no lease between the parties." (Order, Fitzpatrick, J., Mar. 30, 2009, at *1-2.) In a holdover proceeding, L & T Index No. 50020/09, the Honorable Eardell J. Rashford found that "no lease . . . has ever been executed, therefore, there is no lease in effect." (Order, Rasford, J., May 29, 2009, at *2.) In the seventh summary proceeding, L & T Index No. 071604/09, petitioner argued that respondent "was unlawfully holding over because respondent allegedly refused to renew his lease." (Affirmation of Kozek-Perkins ¶ 19.) The petition alleged that the lease term expired on May 31, 2009, and that respondent refused to vacate the premises even though petitioner had sent a notice of termination at least 30 days before the expiration. In that case, Judge Rashford granted respondent's summary-judgment motion, finding that the "expiration of a month to month tenancy . . . is not one of the grounds for termination specified [*2]in the RSC, and therefore cannot constitute the basis of a holdover proceeding." (Order, Rashford, J., Sept. 29, 2009, at *3.) Judge Rashford also found that respondent's failure to renew an expiring lease would be a permitted ground for termination, but "not only does the notice of termination not contain the facts necessary to establish this ground for termination, but [it] contains no facts at all, and merely tracks the words of the Code provision." (Id.)

Respondent contends that this proceeding is nearly identical to the proceeding in which Judge Rashford granted respondent's summary-judgment motion.

Respondent now moves for summary judgment on various grounds, including that petitioner's termination notice is ineffective. Petitioner cross-moves for summary judgment on the ground that no lease exists between petitioner and respondent.

Respondent argues that petitioner's termination notice fails to establish the alleged ground to terminate respondent's tenancy, as required under Rent Stabilization Code § 2524.2 (b). Petitioner's termination notice states that "Landlord is giving you this notice pursuant to, but not limited to, Sections 2524.2 (c) (1) and 2524.3 (f) of the Rent Stabilization Code because you have refused to execute the initial rent stabilized lease dated August 1, 2008." (Ex F, Petitioner's Cross-Motion.) RSC § 2524.2 (b) provides that "[e]very 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."

An acceptable ground for termination under RSC § 2524.3 (f) is if a tenant "has refused, following notice pursuant to section 2523.5 of this Title, to renew an expiring lease in the manner prescribed in such notice at the legal regulated rent authorized under this Code and the RSL." Section 2524.2 (c) (1) provides that in the case of a notice based upon section 2524.3 (f), a notice of termination must be served "at least 15 days prior to the date specified therein for the surrender of possession."

According to petitioner, the termination notice is legally sufficient and "reasonable in view of all attendant circumstances." (Affirmation of Roth ¶ 42.) However, because, under principles of collateral estoppel, two judges have found that no lease between the parties exists, there can be no renewal of a non-existent lease, and RSC § 2524.3 (f) does not provide for termination in the case of failure to execute a lease. Thus, petitioner's termination notice is invalid. Respondent is granted summary judgment. This proceeding is dismissed without prejudice.

Respondent also argues in the alternative that this proceeding should be dismissed because the lease fails to comply with governing law. Petitioner tendered to respondent a Standard Form of Apartment Lease (Standard Lease) from the Real Estate Board of New York. Respondent contends that several articles in the Standard Lease are invalid. Although the court, [*3]having granted respondent's motion for summary judgment, need not address respondent's in-the-alternative argument, the following discussion might assist the parties to resolve their differences.

Respondent argues that petitioner was required to provide respondent with an option for either a one-year or two-year term under RSC § 2522.5 (a). (Affirmation of Kozek-Perkins ¶ ¶ 56-57.) Respondent also argues that the lease cannot expand reasons for eviction from those listed in the RSC. (Affirmation of Kozek-Perkins ¶ 61.) Respondent further argues the lease violates the warranty of habitability because Article 14 limits liability in times of "strike, labor, trouble, national emergency, repairs or any other cause beyond Owner's reasonable control" and because the second paragraph of Article 21 limits petitioner's liability for "temporary interference with light, ventilation or view caused by construction by or in behalf of owner," if the interference is not caused by the owner or if the owners' action is required by law. (Lease, Ex. A, Petition.) Respondent contends, moreover, that the provision in Standard Lease Article 9 requiring respondent to move out at the end of the lease should be amended to apply only if respondent elects not to renew the lease, (Affirmation of Kozek-Perkins ¶ 59); that Article 15 (a) conflicts with respondent's obligation to grant access to respondent's apartment under RSC § 2524.3 (Affirmation of Kozek-Perkins ¶ 64); and that Article 22 extends petitioner's right not to rebuild after a fire because the RSC permits petitioner not to rebuild only if it would be economically improvident to do so. (Affirmation of Kozek-Perkins ¶ 66.) The HonorableArlene H. Hahn has considered many provisions of the Standard Lease and noted areas in conflict with the governing laws. (See Thompson v Lung Pi, Inc.., L & T Index No 85406/83 [Hous Part, Civ Ct, NY County Apr. 22, 2009].) Judge Hahn's decision may provide guidance for any modifications to the Standard Lease.

For the foregoing reasons, respondent's summary judgment is granted. Petitioner's cross-motion for summary judgment is denied as academic. If this were a different type of proceeding, petitioner's summary-judgment motion might have been granted subject to this court's order that petitioner cure any defects in the lease and allow respondent an opportunity to sign a lease within 30 days.

This opinion is the court's decision and order.

Dated: May 3, 2010

J.H.C.