Landlord & Tenant

Statement on Tourist Visa Application Precludes Rent Stabilization Status

Katz Park Avenue Corp. v. Jagger

NYLJ 10/24/07, p. 26, col. 1

AppDiv, First Dept.

(3-2 decision; opinion by Sullivan, J; dissent by Malone, J.)

In landlord's nonprimary residence proceeding, landlord appealed from the Supreme Court's denial of its summary judgment motion. The Appellate Division reversed and awarded landlord summary judgment on its ejectment claim, concluding that tenant's presence in the United States as a nonimmigrant on a tourist visa precluded tenant from asserting that her Park Avenue apartment was her primary residence.

Celebrity tenant Bianca Jagger is a citizen of the United Kingdom, and holds a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning. She also occupies a rent-stabilized apartment in Manhattan. In November 2004, landlord served tenant with a notice that it did not intend to renew tenant's lease, alleging that she did not maintain her primary residence in the apartment. Landlord sought summary judgment, but Supreme Court denied the motion, holding that a person who has a domicile abroad may nevertheless have a primary residence in a New York apartment. Landlord appealed.

In reversing, the Appellate Division majority emphasized the definition of residence in the Federal Immigration and Nationality Act, which required the place of residence to be a person's 'principal, actual dwelling place in fact, without regard to intent.' (8 USC section 1101[a][33]). Because tenant's B-2 visa required that she maintain her permanent residence outside the United States, the court majority concluded that any tenant who satisfied the conditions necessary to maintain a B-2 tourist visa could not simultaneously maintain her primary residence in a New York apartment. As a result, the majority concluded that landlord was entitled to possession of the apartment. Justice Malone, dissenting, noted that the terms of the B-2 visa did not prevent tenant from establishing a primary-but-temporary primary residence in a New York apartment, and concluded that the mere fact that tenant held a B-2 visa did not, by itself, entitle landlord to prevail on its nonprimary residence claim. The dissenters would have held, instead, that tenant's primary residence was a question of fact on which no single factor is determinative. As a result, the dissenters concluded that landlord was not entitled to summary judgment.

COMMENT

Tenant's intention to establish a rent-regulated apartment in New York as her primary residence is insufficient to entitle her to rent stabilization protection if she cannot demonstrate an ongoing physical presence at the apartment. Thus, in Sommer v. Turkel, 522 N.Y.S.2d 765, the court
60-70 days a year could not show that the apartment was her primary residence, even if she did intend to return to New York at some time in the future, because she did not continually and actively stay in the apartment. Her occupation as a model and actress frequently required her to physically be in California and prevented her from living primarily in New York.

When tenant's intention to maintain her New York apartment as her primary residence is clear, tenant may use factors other than physical presence to illustrate the necessary strong physical connection to the apartment. Thus, in Glenbriar Co. v. Lipsman, 783 N.Y.S.2d 546, the court held that despite having another residence in Florida and living there for approximately six months during the year, the tenant was able to establish New York as her primary residence. The tenant proved that she was a primary resident by using evidence that illustrated an ongoing physical relationship with her apartment. The evidence included her completely furnished New York apartment, her three active bank accounts in New York, and her continuing to vote in the New York elections.

The question in Katz was whether substantial physical connection to the New York apartment is sufficient to establish primary residence when tenant states an intent to maintain a primary residence outside of New York. The Appellate Division majority concluded that the foreign tenant's declaration of intent to return to her home country in Britain through the use of a tourist visa constituted an absolute bar to establishing primary residence status in New York. The dissenting justices, on the other hand, concluded that the tenant's statement should be treated as only one factor when determining primary residence, not as
a conclusive bar if a tenant has
maintained substantial physical connection to the New York apartment.

 

Private Housing Finance Law Precludes Transfer to Private Entity

Knickerbocker Village Tenants Association v. Calogero

NYLJ 11/1/07, p. 35, col. 2

AppDiv, First Dept.

(memorandum opinion)

In tenants' article 78 proceeding challenging DHCR's grant of consent to dissolution of landlord, a limited dividend housing company, and transfer of its assets to a private entity, landlord appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that section 82 of the Private Housing Finance Law precludes transfer of assets to a private entity.

Landlord was organized in 1934 and is currently subject to the Private Housing Finance Law. The subject project includes 1,590 apartments for persons with low income. Landlord applied to DHCR for consent to dissolve, and to deregulate and transfer its property to a private entity, landlord's sole shareholder. DHCR granted consent, subject to the requirement that the apartments would be subject to the rent stabilization law. Tenants brought this article 78 proceeding, and Supreme Court annulled DHCR's determination, holding that the Commissioner had statutory authority to consent to dissolution, but could not authorize transfer to the city or to another limited dividend housing company.

In affirming, the Appellate Division noted that the issue was a pure question of law, leaving little basis for deferring to DHCR's determination. The court then relied on subsection 2 of section 82 of the Private Housing Finance Law, which provides that no housing company shall sell, exchange, transfer or assign any real property except to a municipality or to another limited dividend housing company. The court held that this provision eliminates any ambiguity in subsection 12 of the statute, which provides that the company cannot dissolve without the consent of the commissioner, but does not state what is to become of the property upon dissolution. Hence, the commissioner had no authority to consent to transfer to a private entity.

 

RRRA Does Not Bar Four-Year-Old Evidence To Establish That Overcharge Was Not Willful

In re H.O. Realty Corp. v. DHCR

NYLJ 10/22/07, p. 18, col. 1

AppDiv, First Dept.

(3-2 decision; Opinion by Kavanagh, J; dissenting opinion by Sweeny, J.).

In landlord's article 78 proceeding challenging DHCR's determination assessing landlord with treble damages for a willful rent overcharge, landlord appealed from the Supreme Court's dismissal of the proceeding. The Appellate Division reversed, concluding that the four-year limitation period of the Rent Regulation Reform Act of 1997 (RRRA) did not bar landlord from offering evidence, more than four years old, to establish that its overcharge was not willful.

Tenant filed a rent overcharge complaint in 2002. Landlord contended that any increase above what statutory increases was due to costs landlord incurred in making improvements to the premises in 1997-98. DHCR determined that the improvements did not justify the increases, but that landlord had acted in the good faith belief that it had the right to pass on the costs in the form of an increase. Hence, DHCR did not award treble damages. Both landlord and tenant brought article 78 proceedings, but while those proceedings were pending, DHCR sought permission to remit the matter for further review. On that review, DHCR determined that the landlord's overcharge was willful because the four-year limitation period in the RRRA applied both to calculations of a rent overcharge and to the determination of landlord's willfulness. As a result, DHCR determined that it could not consider the costs landlord alleged to have incurred in 1997. The Supreme Court agreed and dismissed landlord's article 78 proceeding.

In reversing, the Appellate Division majority emphasized that owners, not tenants, were intended to be the beneficiary of the four-year limitation period imposed by the RRRA. Moreover, the court noted that once a determination of overcharge is made, landlord is presumed to have acted willfully, and bears the burden of proving that it did not know that it was overcharging. In light of that heavy burden, and the significant penalty of treble damages, the majority concluded that landlord ought to be entitled to draw on evidence more than four years old to explain its behavior.

Justice Sweeny, dissenting, concluded that DHCR's conclusion about willfulness was rational, and relied on an absolute statutory bar to consideration of evidence more than four years old.

COMMENT

Despite language in section 26-516(a)(2) of the New York City Administrative Code purporting to 'preclude[] examination of the rental history? prior to the four-year period immediately preceding the commencement of the [overcharge] action', courts permit introduction of evidence beyond the four year period if that evidence is necessary to determine whether the apartment is subject to rent stabilization. Thus, in Thornton v. Baron, 5 N.Y.3d 175, the held that tenant could introduce evidence surrounding execution of a lease eight years before the tenant brought an overcharge complaint when, the owner had included in its leases a provision that prohibited tenants from using the apartments as primary residences. The clauses attempted to exploit a statutory exemption from rent stabilization laws for non-primary residents. In invalidating the lease clauses and holding the apartments subject to rent stabilization, the court held that the RRRA only prohibits use of evidence more than four years old when that evidence is offered to calculate an overcharge, but does not prohibit use of that evidence to establish that the apartments were subject to rent stabilization. See also East West Renovating v. NY State Division of Housing, 16 A.D.3d 166 (holding that the RRRA four-year bar does not apply to the determination whether an apartment is regulated, and therefore the court considered evidence surrounding execution of a lease eight years prior to commencement of the action).

By contrast, courts will strictly adhere to RRRA's four-year rule in calculating overcharge amounts. In East West, despite utilizing eight-year-old evidence to conclude the apartment was rent-stabilized and the owner was overcharging, the court used only four-year-old rental history to compute the overcharge amount. In 1992, the parties in East West entered into a lease for an apartment that was rent-stabilized through tenant's J-51 benefits. These benefits were set to expire in 1993 under the condition that the lease notice the deregulation date, but the tenant claimed the lease failed to, and filed an overcharge complaint in 2000. While the court permitted evidence from 1992 to determine if the property was regulated, the court upheld DHCR's decision to assume for purposes of the overcharge complaint that landlord was entitled to charge the free market rent tenant was paying in 1996, and to base tenant's damages only on unlawful percentage increases over that 1996 rent..

Because the four-year rule was designed to protect landlords, not tenants, it is not surprising that courts, like the court in H.O., appear unwilling to permit tenants to exploit the four-year RRRA rule. Thus, in Ador Realty v. DHCR, 25 AD3d 128,, the Second Department ,in a rent overcharge dispute, admitted the owner's eight-year-old evidence to demonstrate compliance with a statute that permits a longevity increase where the unit has been occupied for eight consecutive years. Ador was a particularly strong case for admitting older evidence, because strict application of the RRRA's four-year limit would make it impossible to determine whether tenant had been in possession for eight years ' a necessary prerequisite to landlord's statutory right to collect a longevity increase.

Transient Rentals Prohibited In R8 District

City of New York v. 330 Continental LLC

NYLJ 11/6/07, p. 26, col. 1

Supreme Ct., N.Y. Cty

(Stallman, J.)

In an action by the city against landlord to abate a public nuisance, the city sought a preliminary injunction restraining landlord from renting units to tourists on a transient basis. The court granted the preliminary injunction, holding that the city was likely to be able to show that transient rentals were inconsistent with the zoning ordinance.

Landlord owns three buildings on the Upper West Side of Manhattan, in an R8 general residence zoning district. The zoning ordinance permits 'apartment hotels' in residence districts, but does not permit 'transient hotels.' Apartment hotels are defined as those used primarily for permanent occupancy, while transient hotels are 'used primarily for transient occupancy, and may be rented on a daily basis.' The subject buildings include single room occupancy units, and landlord has advertised many of them on Internet Web sites as inexpensive tourist accommodations. The city brought this action to enjoin such use, contending that the use violated the zoning ordinance and the multiple dwelling law, and, for that reason, constitutes a public nuisance. Section 7-701 and 7-701 defines public nuisance to include 'use … of property in flagrant violation of the building code, zoning resolution … multiple dwelling law which interferes with the interest of the public in the quality of life and total community environment … '

In granting the city a preliminary injunction, the court held that the city had established a likelihood of success on the merits, because landlord's own submissions demonstrated that a significant portion of each building is used for transient occupancy. The court rejected the argument that injunctive relief would cause irreparable harm because tourists had already booked rooms into the future, noting that money damages would be an adequate remedy for any harm caused as a result of the injunction.

Landaverde Does Not Apply To Nonprimary Residence Proceedings

21 West 58^th Street Corp. v. Foster

NYLJ 10/15/07, p. 27, col. 5

AppDiv, First Dept.

(memorandum opinion)

In landlord's nonprimary residence proceeding, tenant appealed from the Appellate Term's reversal of Civil Court's grant of tenant's motion for summary judgment dismissing the petition. The Appellate Division affirmed, holding that landlord's notice of nonrenewal had been timely served.

Before bringing this proceeding, landlord served on tenant a notice of nonrenewal, alleging that tenant was not using the premises as a primary residence. By statute, notice of nonrenewal must be served during a 'window period,' which starts 150 days before, and ends 90 days before, the expiration of the lease. Although landlord in this case mailed the notice more than 90 days before expiration of the lease, tenant moved to dismiss the proceeding, contending that because notice was served by mail, landlord was obligated to factor in an additional five days to assure receipt within the window period. Civil Court agreed and dismissed the petition, but the Appellate Term reversed. Tenant appealed.

In affirming, the Appellate Division concluded that the Court of Appeals' opinion in ATM One, LLC v. Landaverde, 2 NY3d 472, did not apply to nonprimary residence proceedings. The court noted that Landaverde involved service by landlord of a ten-day notice to cure. In that case, tenant would be disadvantaged if the notice arrived late, because tenant would have less time to cure. By contrast, a tenant cannot cure failure to use the premises as a primary residence. As a result, tenant would not suffer the same disadvantage if notice were to arrive late. Hence, the court held that the rule applicable to notices to cure did not apply to nonprimary residence proceedings.

 

Statement on Tourist Visa Application Precludes Rent Stabilization Status

Katz Park Avenue Corp. v. Jagger

NYLJ 10/24/07, p. 26, col. 1

AppDiv, First Dept.

(3-2 decision; opinion by Sullivan, J; dissent by Malone, J.)

In landlord's nonprimary residence proceeding, landlord appealed from the Supreme Court's denial of its summary judgment motion. The Appellate Division reversed and awarded landlord summary judgment on its ejectment claim, concluding that tenant's presence in the United States as a nonimmigrant on a tourist visa precluded tenant from asserting that her Park Avenue apartment was her primary residence.

Celebrity tenant Bianca Jagger is a citizen of the United Kingdom, and holds a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning. She also occupies a rent-stabilized apartment in Manhattan. In November 2004, landlord served tenant with a notice that it did not intend to renew tenant's lease, alleging that she did not maintain her primary residence in the apartment. Landlord sought summary judgment, but Supreme Court denied the motion, holding that a person who has a domicile abroad may nevertheless have a primary residence in a New York apartment. Landlord appealed.

In reversing, the Appellate Division majority emphasized the definition of residence in the Federal Immigration and Nationality Act, which required the place of residence to be a person's 'principal, actual dwelling place in fact, without regard to intent.' (8 USC section 1101[a][33]). Because tenant's B-2 visa required that she maintain her permanent residence outside the United States, the court majority concluded that any tenant who satisfied the conditions necessary to maintain a B-2 tourist visa could not simultaneously maintain her primary residence in a New York apartment. As a result, the majority concluded that landlord was entitled to possession of the apartment. Justice Malone, dissenting, noted that the terms of the B-2 visa did not prevent tenant from establishing a primary-but-temporary primary residence in a New York apartment, and concluded that the mere fact that tenant held a B-2 visa did not, by itself, entitle landlord to prevail on its nonprimary residence claim. The dissenters would have held, instead, that tenant's primary residence was a question of fact on which no single factor is determinative. As a result, the dissenters concluded that landlord was not entitled to summary judgment.

COMMENT

Tenant's intention to establish a rent-regulated apartment in New York as her primary residence is insufficient to entitle her to rent stabilization protection if she cannot demonstrate an ongoing physical presence at the apartment. Thus, in Sommer v. Turkel , 522 N.Y.S.2d 765, the court
60-70 days a year could not show that the apartment was her primary residence, even if she did intend to return to New York at some time in the future, because she did not continually and actively stay in the apartment. Her occupation as a model and actress frequently required her to physically be in California and prevented her from living primarily in New York.

When tenant's intention to maintain her New York apartment as her primary residence is clear, tenant may use factors other than physical presence to illustrate the necessary strong physical connection to the apartment. Thus, in Glenbriar Co. v. Lipsman , 783 N.Y.S.2d 546, the court held that despite having another residence in Florida and living there for approximately six months during the year, the tenant was able to establish New York as her primary residence. The tenant proved that she was a primary resident by using evidence that illustrated an ongoing physical relationship with her apartment. The evidence included her completely furnished New York apartment, her three active bank accounts in New York, and her continuing to vote in the New York elections.

The question in Katz was whether substantial physical connection to the New York apartment is sufficient to establish primary residence when tenant states an intent to maintain a primary residence outside of New York. The Appellate Division majority concluded that the foreign tenant's declaration of intent to return to her home country in Britain through the use of a tourist visa constituted an absolute bar to establishing primary residence status in New York. The dissenting justices, on the other hand, concluded that the tenant's statement should be treated as only one factor when determining primary residence, not as
a conclusive bar if a tenant has
maintained substantial physical connection to the New York apartment.

 

Private Housing Finance Law Precludes Transfer to Private Entity

Knickerbocker Village Tenants Association v. Calogero

NYLJ 11/1/07, p. 35, col. 2

AppDiv, First Dept.

(memorandum opinion)

In tenants' article 78 proceeding challenging DHCR's grant of consent to dissolution of landlord, a limited dividend housing company, and transfer of its assets to a private entity, landlord appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that section 82 of the Private Housing Finance Law precludes transfer of assets to a private entity.

Landlord was organized in 1934 and is currently subject to the Private Housing Finance Law. The subject project includes 1,590 apartments for persons with low income. Landlord applied to DHCR for consent to dissolve, and to deregulate and transfer its property to a private entity, landlord's sole shareholder. DHCR granted consent, subject to the requirement that the apartments would be subject to the rent stabilization law. Tenants brought this article 78 proceeding, and Supreme Court annulled DHCR's determination, holding that the Commissioner had statutory authority to consent to dissolution, but could not authorize transfer to the city or to another limited dividend housing company.

In affirming, the Appellate Division noted that the issue was a pure question of law, leaving little basis for deferring to DHCR's determination. The court then relied on subsection 2 of section 82 of the Private Housing Finance Law, which provides that no housing company shall sell, exchange, transfer or assign any real property except to a municipality or to another limited dividend housing company. The court held that this provision eliminates any ambiguity in subsection 12 of the statute, which provides that the company cannot dissolve without the consent of the commissioner, but does not state what is to become of the property upon dissolution. Hence, the commissioner had no authority to consent to transfer to a private entity.

 

RRRA Does Not Bar Four-Year-Old Evidence To Establish That Overcharge Was Not Willful

In re H.O. Realty Corp. v. DHCR

NYLJ 10/22/07, p. 18, col. 1

AppDiv, First Dept.

(3-2 decision; Opinion by Kavanagh, J; dissenting opinion by Sweeny, J.).

In landlord's article 78 proceeding challenging DHCR's determination assessing landlord with treble damages for a willful rent overcharge, landlord appealed from the Supreme Court's dismissal of the proceeding. The Appellate Division reversed, concluding that the four-year limitation period of the Rent Regulation Reform Act of 1997 (RRRA) did not bar landlord from offering evidence, more than four years old, to establish that its overcharge was not willful.

Tenant filed a rent overcharge complaint in 2002. Landlord contended that any increase above what statutory increases was due to costs landlord incurred in making improvements to the premises in 1997-98. DHCR determined that the improvements did not justify the increases, but that landlord had acted in the good faith belief that it had the right to pass on the costs in the form of an increase. Hence, DHCR did not award treble damages. Both landlord and tenant brought article 78 proceedings, but while those proceedings were pending, DHCR sought permission to remit the matter for further review. On that review, DHCR determined that the landlord's overcharge was willful because the four-year limitation period in the RRRA applied both to calculations of a rent overcharge and to the determination of landlord's willfulness. As a result, DHCR determined that it could not consider the costs landlord alleged to have incurred in 1997. The Supreme Court agreed and dismissed landlord's article 78 proceeding.

In reversing, the Appellate Division majority emphasized that owners, not tenants, were intended to be the beneficiary of the four-year limitation period imposed by the RRRA. Moreover, the court noted that once a determination of overcharge is made, landlord is presumed to have acted willfully, and bears the burden of proving that it did not know that it was overcharging. In light of that heavy burden, and the significant penalty of treble damages, the majority concluded that landlord ought to be entitled to draw on evidence more than four years old to explain its behavior.

Justice Sweeny, dissenting, concluded that DHCR's conclusion about willfulness was rational, and relied on an absolute statutory bar to consideration of evidence more than four years old.

COMMENT

Despite language in section 26-516(a)(2) of the New York City Administrative Code purporting to 'preclude[] examination of the rental history? prior to the four-year period immediately preceding the commencement of the [overcharge] action', courts permit introduction of evidence beyond the four year period if that evidence is necessary to determine whether the apartment is subject to rent stabilization. Thus, in Thornton v. Baron, 5 N.Y.3d 175, the held that tenant could introduce evidence surrounding execution of a lease eight years before the tenant brought an overcharge complaint when, the owner had included in its leases a provision that prohibited tenants from using the apartments as primary residences. The clauses attempted to exploit a statutory exemption from rent stabilization laws for non-primary residents. In invalidating the lease clauses and holding the apartments subject to rent stabilization, the court held that the RRRA only prohibits use of evidence more than four years old when that evidence is offered to calculate an overcharge, but does not prohibit use of that evidence to establish that the apartments were subject to rent stabilization. See also East West Renovating v. NY State Division of Housing, 16 A.D.3d 166 (holding that the RRRA four-year bar does not apply to the determination whether an apartment is regulated, and therefore the court considered evidence surrounding execution of a lease eight years prior to commencement of the action).

By contrast, courts will strictly adhere to RRRA's four-year rule in calculating overcharge amounts. In East West, despite utilizing eight-year-old evidence to conclude the apartment was rent-stabilized and the owner was overcharging, the court used only four-year-old rental history to compute the overcharge amount. In 1992, the parties in East West entered into a lease for an apartment that was rent-stabilized through tenant's J-51 benefits. These benefits were set to expire in 1993 under the condition that the lease notice the deregulation date, but the tenant claimed the lease failed to, and filed an overcharge complaint in 2000. While the court permitted evidence from 1992 to determine if the property was regulated, the court upheld DHCR's decision to assume for purposes of the overcharge complaint that landlord was entitled to charge the free market rent tenant was paying in 1996, and to base tenant's damages only on unlawful percentage increases over that 1996 rent..

Because the four-year rule was designed to protect landlords, not tenants, it is not surprising that courts, like the court in H.O., appear unwilling to permit tenants to exploit the four-year RRRA rule. Thus, in Ador Realty v. DHCR, 25 AD3d 128,, the Second Department ,in a rent overcharge dispute, admitted the owner's eight-year-old evidence to demonstrate compliance with a statute that permits a longevity increase where the unit has been occupied for eight consecutive years. Ador was a particularly strong case for admitting older evidence, because strict application of the RRRA's four-year limit would make it impossible to determine whether tenant had been in possession for eight years ' a necessary prerequisite to landlord's statutory right to collect a longevity increase.

Transient Rentals Prohibited In R8 District

City of New York v. 330 Continental LLC

NYLJ 11/6/07, p. 26, col. 1

Supreme Ct., N.Y. Cty

(Stallman, J.)

In an action by the city against landlord to abate a public nuisance, the city sought a preliminary injunction restraining landlord from renting units to tourists on a transient basis. The court granted the preliminary injunction, holding that the city was likely to be able to show that transient rentals were inconsistent with the zoning ordinance.

Landlord owns three buildings on the Upper West Side of Manhattan, in an R8 general residence zoning district. The zoning ordinance permits 'apartment hotels' in residence districts, but does not permit 'transient hotels.' Apartment hotels are defined as those used primarily for permanent occupancy, while transient hotels are 'used primarily for transient occupancy, and may be rented on a daily basis.' The subject buildings include single room occupancy units, and landlord has advertised many of them on Internet Web sites as inexpensive tourist accommodations. The city brought this action to enjoin such use, contending that the use violated the zoning ordinance and the multiple dwelling law, and, for that reason, constitutes a public nuisance. Section 7-701 and 7-701 defines public nuisance to include 'use … of property in flagrant violation of the building code, zoning resolution … multiple dwelling law which interferes with the interest of the public in the quality of life and total community environment … '

In granting the city a preliminary injunction, the court held that the city had established a likelihood of success on the merits, because landlord's own submissions demonstrated that a significant portion of each building is used for transient occupancy. The court rejected the argument that injunctive relief would cause irreparable harm because tourists had already booked rooms into the future, noting that money damages would be an adequate remedy for any harm caused as a result of the injunction.

Landaverde Does Not Apply To Nonprimary Residence Proceedings

21 West 58^th Street Corp. v. Foster

NYLJ 10/15/07, p. 27, col. 5

AppDiv, First Dept.

(memorandum opinion)

In landlord's nonprimary residence proceeding, tenant appealed from the Appellate Term's reversal of Civil Court's grant of tenant's motion for summary judgment dismissing the petition. The Appellate Division affirmed, holding that landlord's notice of nonrenewal had been timely served.

Before bringing this proceeding, landlord served on tenant a notice of nonrenewal, alleging that tenant was not using the premises as a primary residence. By statute, notice of nonrenewal must be served during a 'window period,' which starts 150 days before, and ends 90 days before, the expiration of the lease. Although landlord in this case mailed the notice more than 90 days before expiration of the lease, tenant moved to dismiss the proceeding, contending that because notice was served by mail, landlord was obligated to factor in an additional five days to assure receipt within the window period. Civil Court agreed and dismissed the petition, but the Appellate Term reversed. Tenant appealed.

In affirming, the Appellate Division concluded that the Court of Appeals' opinion in ATM One, LLC v. Landaverde , 2 NY3d 472, did not apply to nonprimary residence proceedings. The court noted that Landaverde involved service by landlord of a ten-day notice to cure. In that case, tenant would be disadvantaged if the notice arrived late, because tenant would have less time to cure. By contrast, a tenant cannot cure failure to use the premises as a primary residence. As a result, tenant would not suffer the same disadvantage if notice were to arrive late. Hence, the court held that the rule applicable to notices to cure did not apply to nonprimary residence proceedings.