
    [871 NYS2d 576]
    Fred Giancola et al., Appellants, v James Middleton, Respondent.
    Supreme Court, Appellate Term, Second Department,
    August 19, 2008
    
      APPEARANCES OF COUNSEL
    
      Kossoff & Unger, New York City (Stacie Bryce Feldman of counsel), for appellants. Collins, Dobkin & Miller, LLP, New York City (Stephen Dobkin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this owner-occupancy holdover proceeding (see Rent Stabilization Code [9 NYCRR] § 2524.4 [a]), landlords’ notice of nonrenewal stated, in relevant part:

“[0]ne of the Landlord/Owners [ ] seeks to recover possession of the premises involved for the personal use and occupancy of the premises involved by a member of the Landlord/Owner’s immediate family as their primary residence in the City of New York. Specifically, the underlying facts concerning the Landlord/Owner’s desire to recover possession of the premises involvedf ] include, but are not limited to the following: (a) Fred Giancola is one of the Landlord/Owners of the building ... in which the premises involved are located (hereinafter the ‘Building’); (b) Fred Giancola seeks, in good faith, to recover the premises involved so that it can be occupied by his son, David Giancola, who is a member of his immediate family.”

Tenant moved to dismiss the petition, arguing that the notice of nonrenewal failed to state the facts upon which the proceeding was based. Landlords opposed the motion, arguing that the notice was sufficient, in that it named the specific owner seeking use of the premises and stated that the named owner sought the use of the premises for his son, who was also named. Landlords contended that simply naming the individual seeking the premises is legally sufficient for a notice of nonrenewal in owner-occupancy cases. The court below granted tenant’s motion to dismiss the petition, finding that the notice was inadequate because it was “devoid of any information tending to support the owner’s good faith intention for seeking this particular premises.” We agree.

Rent Stabilization Code (9 NYCRR) § 2524.2 (b) requires that every notice to a tenant to vacate or surrender possession of rent-stabilized premises state the ground upon which the owner relies for eviction, as well as “the facts necessary to establish the existence of such ground.” The absence of such a factual recitation renders the notice insufficient to serve as a predicate for an eviction proceeding based upon owner occupancy (Berkeley Assoc. Co. v Camlakides, 173 AD2d 193 [1991], affd 78 NY2d 1098 [1991]; Numano v Vicario, 165 Misc 2d 457 [App Term, 1st Dept 1995]; cf. Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003]).

Landlords’ notice in this case merely tracked the language for nonrenewal upon the ground of owner occupancy (Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [1]) and provided the name of the person seeking to occupy the apartment, without setting forth any factual allegations to support landlords’ claim of a good faith intention to occupy tenant’s apartment (see Pultz v Economakis, 10 NY3d 542 [2008]; Nestor v Britt, 213 AD2d 255 [1995]). Such a notice is insufficient (see Nahum v Goldschmidt, 2003 NY Slip Op 50028[U] [App Term, 1st Dept 2003]; cf. e.g. Barrett v Silva, 18 Misc 3d 126[A], 2007 NY Slip Op 52359[U] [App Term, 2d & 11th Jud Dists 2007] [notice which set forth owner’s intended plans for apartment was sufficient]; Peng v Van Zandt, 14 Misc 3d 138[A], 2007 NY Slip Op 50272[U] [App Term, 1st Dept 2007] [notice which set forth facts demonstrating owner’s readiness to move in was sufficient]; Tze Hao Yen v Ramos, 183 Misc 2d 503 [App Term, 1st Dept 1999] [notice which set forth owner’s reason for seeking to occupy premises was sufficient]; cf. generally Pultz v Economakis, 10 NY3d 542 [2008], supra [implicitly approving a notice which detailed the owner’s plans to convert the multi-family building into a one-family structure]). To the extent that our prior decisions which preceded Berkeley may be to the contrary (e.g. Whang v Wald, NYLJ, Apr. 3, 1990, at 29 [App Term, 2d & 11th Jud Dists 1990]), they are no longer to be followed.

Accordingly, the order granting tenant’s motion to dismiss the petition is affirmed.

Golia, J.

(dissenting and voting to reverse the order and deny tenant’s motion to dismiss the petition, in the following memorandum). Contrary to the majority, I find that the notice of non-renewal, which was predicated upon Rent Stabilization Code (9 NYCRR) § 2524.4 (a) (occupancy by owner or member of owner’s immediate family), included sufficient facts necessary to establish a basis for the nonrenewal of the lease.

More specifically, the notice contains the actual name of the family member who is going to occupy the premises as his primary residence as well as his relationship to the owner (see Whang v Wald, NYLJ, Apr. 3, 1990, at 29 [App Term, 2d & 11th Jud Dists 1990]). The reliance by the majority on the case of Berkeley Assoc. Co. v Camlakides (173 AD2d 193 [1991], affd 78 NY2d 1098 [1991]) is misplaced because that case dealt with the section of the Rent Stabilization Code concerning a tenant’s alleged failure to maintain the premises as his primary residence, whereas the case at bar deals with the section concerning the right to obtain the apartment by an owner for himself or his immediate family.

There is an important distinction between these two sections of the Rent Stabilization Code. In cases involving an owner’s obtaining possession of an apartment on the grounds of nonprimary residence, the question presented is whether or not the current tenant is maintaining the subject apartment as his primary residence. If he is not using it as his primary residence, he loses the protection of the Rent Stabilization Law. Such cases deal entirely with the facts and circumstances of the tenant’s living situation and have nothing to do with the owner, his family members or their living situation. That is why a claim of use as a nonprimary residence must be fact specific and may involve the legal ramifications of a tenant’s lifestyle choices, such as spending every winter in another state with a warmer climate; spending time caring for a sick friend or relative; staying for an extended period with a friend; allowing other people to live in the apartment in tenant’s absence; as well as any number of other life situations.

However, in an “owner occupancy” situation such as this, the sole issue is whether or not the owner, or his immediate family, actually intends to occupy the subject premises as his primary residence. The living situation of the present tenant is completely irrelevant and therefore any facts concerning the tenant’s living situation are of no concern. In addition, there is no requirement that the owner or his family member need the apartment for any specific reason or for that matter that they “need” the apartment at all.

In rare instances, the needs and factual circumstances of the owner’s living situation can be important. An example of such a rare situation arose in the case of Pultz v Economakis (10 NY3d 542 [2008]). In that case, the owner sought “owner occupancy” of an entire 15-unit apartment building to be used as the primary residence of him and his immediate family. This was a unique case, and based upon the extensive factual assertions concerning family needs and detailed construction plans, the Appellate Division and the Court of Appeals rejected the tenant’s claim that the owner was actually seeking to utilize the expediency of this section to simply take the entire building out of the rent stabilization rolls.

It is only under such unique circumstances that a simple statement of intent is insufficient. This is entirely understandable inasmuch as a notice stating that the owner intends to occupy a single apartment as his primary residence is a perfectly reasonable and believable concept. Indeed, a notice stating that the owner intends to occupy 15 apartments as his primary residence is suspect on its face, and therefore must include additional factual information in order for that statement to appear truthful and reasonable.

Nevertheless, the only requirement for obtaining the use of the apartment is that the owner intends to occupy the apartment as his primary residence. In this regard, the notice in question states:

“Please Take Notice, that your tenancy ... is hereby terminated . . . the owners of the building . . . will not be renewing your current lease ... on the grounds that one of the Landlord/Owners, seeks to recover possession . . . for the personal use and occupancy ... by a member of the Landlord/ Owner’s immediate family as their primary residence . . . Specifically ... (a) Fred Giancola is one of the Landlord/Owners ...(b) Fred Giancola seeks, in good faith, to recover the premises ... so it can be occupied by his son, David Giancola, who is a member of his immediate family” (emphasis added).

Under these simple circumstances, I do not see any reason why any further factual information is necessary. Clearly, section 2524.4 (a) (5) provides for certain punishment or forfeiture in the event the proposed occupant fails to occupy the premises or to continue in occupancy as his primary residence for at least three years. Furthermore, it is abundantly clear that this provision was included to prevent any intentional abuse by an owner. Indeed, this section provides that “This paragraph shall not eliminate or create any claim that the former tenant of the housing accommodation may or may not have against the owner.” (9 NYCRR 2524.4 [a] [5].)

Rios, J.E, and Pesce, J., concur; Golia, J., dissents in a separate memorandum.  