
    Trustees of Columbia University in the City of New York, Respondent, v. Joel Griffiths, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 17, 1973.
    
      
      Berger, Kramer & Levenson (Jerome M. Kay and Richard L. Levenson of counsel), for appellant. Maxwell Shapiro for respondent.
   Per Curiam.

In light of the unique situation presented on the instant record a brief delineation of the factual background of this litigation is warranted. Tenant moved into the subject apartment in September, 1966, pursuant to a lease for the term October 1, 1966, through September 30, 1968. Prior thereto, he had lived in another building owned by the petitioner and was offered the subject apartment when the other building was demolished. By order dated April 24,1968, the rent commission found the subject apartment decontrolled, effective November 14, 1966. Upon tenant’s receipt of notice thereof, he protested the order and received an adverse decision from the rent commission. Then an article 78 proceeding was instituted by the tenant, which resulted in a remand of the proceeding to the rent commission. Thereupon, there were discussions between tenant’s counsel and landlord’s counsel, which resulted in the execution of a stipulation of discontinuance, and of the lease at issue herein. This lease, which by its terms expired in February, 1972, provided in paragraph 30: “At the expiration of the term hereof landlord may thereafter terminate the then month to month tenancy of tenant, upon the giving of sixty (60) days written notice. If tenant vacates on or before the date set forth in said notice landlord ahall pay to tenant the sum of Two Thousand ($2,000.00) Dollars. In the event tenant holds over beyond the date so fixed by landlord there shall be deducted from said sum of Two Thousand ($2,000.00) Dollars, which landlord is obligated to pay, the sum of One Hundred ($100.00) Dollars per day for each day tenant holds over beyond the date specified in the sixty (60) day notice.”

During the term of the lease, the Rent Stabilization Law was enacted (Administrative Code of City of New York, tit. YY, ch. 51, added by Local Laws, 1969, No. 16 of City of New York). By letter dated January 12, 1972, tenant requested a new lease which request was rejected by the landlord on January 14,1972. Following that, tenant received a letter from the landlord offering tenant the $2,000 amount referred to in the above-cited lease paragraph. Thereupon, tenant commenced a proceeding before the Rent Stabilization Conciliation and Appeals Board, asserting his claim of right to a new 11 renewal ’ ’ lease under the Rent Stabilization Law (Administrative Code, § YY 51-6.0, subd. c, par. [9]). That board rendered a determination May 11, 1972, which stated, in pertinent part, concerning landlord’s claim of right to possession under paragraph 30 of the lease: the issues raised by the parties’ contention concerning the meaning of this settlement agreement are not determined herein by this board and this order is without prejudice to the rights and defenses of the parties in a court of competent jurisdiction ”. The instant proceeding was then commenced.

Tenant argues that when the lease expired, the landlord was required to offer a new lease pursuant to section YY 51-6.0 (subd. c, par. [4]) of the Administrative Code which mandates such leases to be offered, except under certain circumstances not here present, for apartments subject to the Rent Stabilization Law. The landlord primarily urges that no new lease was required to be offered because the lease provision quoted above coupled with the stipulation of discontinuance constituted an agreement in settlement of litigation which has not been rendered ineffective by the Rent Stabilization Law.

Section 65 of the Code of the Real Estate Industry Stab'dization Association of New York City, Inc., prohibits inclusion of rights of cancellation or eviction by landlords in leases offered under the Rent Stabilization Law. It does not prohibit exercise of any such right granted in other leases (cf. Code of Real Estate Industry Stabilization Assn., 10, subd. [b], and N. Y. City Administrative Code, § YY 51-6.0, subd. c, pars. [2], [3], for sections which provide for retroactivity). Section YY 51-6.0 (subd. c, pars. [4], [9]) of the New York City Administrative Code which requires landlords to offer renewal leases is not couched in retroactive terms and has been held not retroactive by this court as to leases expiring prior to the effective date of the statute (Fifty Cent. Park West Corp. v. Bastien, 64 Misc 2d 911, affg. 60 Misc 2d 195). This court then stated (p. 912) with respect to the issue of retroactivity: “ A pre-existing right is not affected by legislation, unless legislative intent to the contrary is obvious, so that any doubt is to be resolved in favor of holding the subsequent statute to be prospective only ”. The antiwaiver provisions of the Rent Stabilization Code (§§ 11, 65) are also not couched in retroactive terms. No such antiwaiver provision is contained in the Administrative Code. The lease at issue herein did not expire prior to the effective date of the Rent Stabilization Law. Nevertheless, insofar as paragraph 30 is concerned, it has indicia of an agreement to vacate executed in settlement of litigation.

If said lease provision is construed as an agreement to vacate, it is not barred by any express language of the code or the statute. Inasmuch as the lease provision specifically empowers the landlord to terminate the tenancy upon 60 days’ written notice after expiration of the lease term, it is difficult to concur in tenant’s argument that this provision did not constitute an agreement to vacate. Clearly, insofar as it provided for payment to tenant of a certain sum if he vacated within the time required, and as it obligated the landlord to give a 60-day notice, it did give tenant additional rights. However, considering the language of this provision in the context of the prior administrative and judicial proceedings, it appears that these rights were given in exchange for tenant’s withdrawal of his claims. While the lease does not expressly state that it constituted an agreement in settlement of litigation, on the undisputed facts this inference clearly arises. Such agreement, absent trick or fraud, should be given effect (Herpe v. Herpe, 225 N. Y. 323). No such wrongdoing is here alleged.

Viewing the lease at issue as one entered into in settlement of litigation and acknowledging the purpose underlying the Rent Stabilization Law, this court concludes that said law was not intended to comprehend the instant unique situation. Inferentially, as part of the settlement of the controversy between landlord and tenant, the landlord did not pursue the legal remedies that were still open at the time of the settlement, in reliance on the terms embodied in the lease agreement entered into as part of such settlement. Assuming that the tenant has a right to renewal because of the Rent Stabilization Law, the landlord would be effectively barred of the options that were open to him at the time the litigation was settled.

Accordingly, construing the lease agreement as containing a provision to vacate, valid when made and not rendered ineffective by the Rent Stabilization Law, and such agreement, being in settlement of litigation, there is no right on tenant’s part to

• renewal of the subject lease.

The final judgment should be affirmed, with $25 costs.

• Quinn, J. P.

(dissenting). The background of events and history of litigation between the parties to this suit, though largely irrelevant to the resolution of the issues presented, are fairly stated in the majority opinion.

The grant of the term for years, by the written lease here in question, was the quid pro quo, furnished by the landlord, in exchange for tenant’s surrender of his valuable right of review of the order of decontrol (beneficial to landlord) pending before the rent commission. The compromise by which the parties thus settled their differences was thereupon concluded as a fully executed oral contract. This lease as the grant of an interest in real property for a term of years was in the nature of a novation, wholly separate and apart from the executed oral contract of settlement for which it furnished landlord’s part of the consideration. This lease makes no mention of the contract of settlement, nor of any of the negotiations leading up to its execution, and is in no way made subject to or conditional upon the concluded compromise or its negotiation.

Paragraph 30 of the lease clearly, simply and unequivocally provides for a possible extension of the stipulated term, on a month to month basis, and the conditions for its termination. To read into paragraph 30 a revival, or perpetuation, or incorporation by implied reference, of the executed oral agreement of settlement and perhaps the unrecorded hopes of the landlord thereunder, is to let imagination run riot in transmuting shadow into substance and to attempt to torture nonexistent meaning from the interstices of plain words.

Taking this written lease in its aspects as a contract merely (apart from its essential character as the conveyance of an interest in real property), to even consider the oral negotiations which led up to the executed oral contract of settlement, for which this written lease was given as consideration, and to seek thereby to construe this lease as some sort of a reverse anomaly called an agreement to vacate ”, is to fly in the face of such elementary principles as the inadmissibility of paroi evidence to vary, enlarge or diminish the unambiguous terms of an executed writing, as well as the presumption of merger of all prior oral negotiations into a final writing.

The Bent Stabilization Law (Administrative Code of City of New York, § YY 51-6.0, subd. c, par. [4]) mandates the offer by landlords of a two- or three-year renewal of the term of every unexpired lease (affecting certain specified New York City housing accommodations) in existence on the effective date of the statute (Fifty Cent. Park West v. Bastien, 64 Misc 2d 911, affg. 60 Misc 2d 195). The fact that an existing lease, by its own provisions for renewal or extension, offers the tenant a lesser renewal term, obviously does not satisfy the mandate of the statute or relieve the landlord of the duty of compliance. Section 10 of the Bent Stabilization Code approved by the Housing and Development Administration pursuant to the powers granted by the Bent Stabilization Law (Local Laws, 1969, No. 16 of City of New York) makes this explicit when it provides in part that: tl The provisions of any lease or other rental agreement shall remain in force pursuant to the terms thereof, except insofar as those provisions are inconsistent with the BSL or this Code, in which event such provisions shall be suspended ”.

If there were no paragraph 30 in the instant lease, it is beyond dispute that tenant would be entitled to a two- or three-year renewal under the mandate of the Rent Stabilization Law and Code. No doubt the Rent Stabilization Law and Code and the legislatively-declared emergency which necessitated it, were not within the contemplation of the parties at the time this lease was executed. But the suggestion that paragraph 30 had created a unique tenancy not within the contemplation of the later-enacted Rent Stabilization Law and Code is a gratuitous assumption rendered wholly untenable by the quoted excerpt suspending all lease provisions inconsistent with the local law and code. The code can only be speaking prospectively when it refers to the suspension of provisions in affected leases which are found to collide with such enactments as the mandate of the statute protecting tenants, at the expiration of their leases, with the option of a two- or three-year renewal. The lease here was in existence on May 12, 1969, the effective date of the statute, and it provided in paragraph 30, at its expiration on February 29, 1972, for an extension of the term, on a month-to-month basis only. This runs afoul of the Rent Stabilization Law and section 10 of the code as an inconsistent provision, so that paragraph 30 is necessarily suspended. With paragraph 30 out of the way, it becomes abundantly clear that landlord’s failure to offer tenant a renewal lease before February 29,1972, in accordance with section 60 of the Rent Stabilization Code, prevents it from maintaining the holdover summary proceeding here under review (Rent Stabilization Code, § 50). The final judgment in favor of landlord should be reversed with $30 costs and the petition dismissed.

Lupiano and Fine, JJ„, concur in Per Curiam opinion; Quinn, J. P., dissents in memorandum.

Final judgment affirmed, etc.  