Sinclair Sec., LLC v. Kudatzky

Sinclair Sec., LLC v Kudatzky (2021 NY Slip Op 50590(U)) [*1] Sinclair Sec., LLC v Kudatzky 2021 NY Slip Op 50590(U) [72 Misc 3d 128(A)] Decided on June 24, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 24, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2019-1300 N C Sinclair Securities, LLC, Appellant, against Karla Kudatzky, Respondent, "John Doe" 1-10, "Jane Doe" 1-10, and "Corp. ABC" 1-10, Undertenants. Rosenberg, Fortuna & Laitman, LLP (Brett D. Zinner of counsel), for appellant. Skiff Law Firm, LLC (Gregory J. Skiff of counsel), for respondent. Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated June 21, 2019. The order granted tenant's motion for summary judgment dismissing the petition in a holdover summary proceeding. ORDERED that the order is affirmed, without costs. Landlord commenced this holdover proceeding by notice of petition and petition dated January 7, 2019 to recover possession of a rent-stabilized apartment in Great Neck, New York on the ground that tenant did not use the apartment as her primary residence as required by Emergency Tenant Protection Regulations (ETPR) (9 NYCRR) § 2504.4 (d). Tenant interposed an answer which denied most of landlord's allegations and asserted, as an affirmative defense, among other things, that landlord failed to serve a timely notice of nonrenewal pursuant to ETPR § 2503.5. By order dated June 21, 2019, the District Court granted tenant's subsequent motion for summary judgment dismissing the petition on the aforementioned ground. Landlord concedes that it did not serve a notice of nonrenewal within the window period provided by the ETPR but takes the position that it is not required to do so, contending that the ETPR, unlike Rent Stabilization Code (9 NYCRR) § 2524.2 (c), does not explicitly require a notice of nonrenewal. This argument is unavailing. In Golub v Frank (65 NY2d 900 [1985]), the Court of Appeals construed language requiring the service of renewal notices within a specified period to also require, in the case of nonrenewal based upon nonprimary residence, that a notice of nonrenewal be served within that window. In Crow v 83rd St. Assocs. (68 NY2d 796 [1986]), the Court of Appeals reaffirmed its holding. Thus, even absent codification, the [*2]statutory requirement that a renewal notice be served within a window period (see ETPR § 2503.5 [a]) mandates that a nonrenewal notice be served within the same period (see Golub v Frank, 65 NY2d 900). Since landlord did not serve a timely notice in accordance with ETPR § 2503.5 (a), tenant is entitled to a renewal lease (see ETPR § 2503.5 [b]). In view of the foregoing, we do not consider landlord's remaining argument. Accordingly, the order is affirmed. RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 24, 2021