Landlord-Tenant—Rent Stabilization—Stale “Golub Notice”—Facts Not Contained in 30-Day Notice—Court Distinguished 'Nicolaides v. NYS Div. of Housing and Community Renewal'

After serving a notice of intent to refuse a lease renewal (Golub Notice), a landlord commenced a summary holdover proceeding, based on the tenant's alleged non-primary residence. The tenant moved to dismiss. The landlord had previously commenced a non-primary proceeding against the tenant (first proceeding) “using the same Golub Notice.” The first proceeding was dismissed following a traverse hearing by order dated Nov. 16, 2016. The landlord thereafter served the tenant with a 30-day notice dated Jan. 24, 2017. The Jan. 24 notice “refers to the Golub Notice, but no copy of the Golub Notice was attached to the thirty-day notice.” In March 2017, the landlord commenced another non-primary residence case against the tenant (second proceeding). The second proceeding was discontinued without prejudice, since a copy of the Golub Notice was not served with either the predicate notice or the pleadings. Prior to discontinuance of the second proceeding, the landlord commenced the subject proceeding.

The landlord had not served a new Golub Notice or 30-day notice before commencing the subject proceeding. The tenant contended that the subject proceeding should be dismissed because the Jan. 24 30-day notice failed to state facts necessary to establish its claim, since “the Golub Notice containing such facts was not attached to the thirty-day notice” and because “dismissal of the first proceeding renders the Golub Notice stale.” Although the tenant did not specify which CPLR section its motion was based on, the court treated the tenant's motion as a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

The court explained:

Under Rent Stabilization Code (RSC) 2524.2(b), “Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state…the facts necessary to establish the existence of such ground…”

The Jan. 24 30-day notice, did “not contain any facts which establish [landlord's] claim, but the Golub Notice does contain such facts.” The landlord had attached a copy of the Golub Notice to the pleadings, but the court found that such action did “not correct the defect in the predicate notice.” The landlord had acknowledged “that the January 24, 2017 30-day notice was the predicate notice” in the subject proceeding. RSC 2524.2(b), provides that the “notice had to contain facts necessary to establish the basis for petitioner's claim of possession.” The court held that since the landlord had not attached a copy of the Golub Notice which contained the necessary facts and had not specified such facts in the 30-day notice, the landlord failed to meet the requirements of RSC 2524.2(b). The court further noted that “a predicate notice may not be amended.” Thus, the court found that the landlord failed to state a cause of action.

The tenant also argued that “the proceeding should be dismissed because the Golub Notice served prior to instituting the first proceeding does not survive the dismissal of that proceeding and thus cannot be used as the basis of the instant proceeding.” The tenant cited Nicolaides v. State Div. of Housing and Community Renewal, 231 A.D.2d 723, 647 N.Y.S.2d 866 (1996). Nicolaides held that “a notice of nonrenewal of a rent stabilized lease does not survive the dismissal of the first holdover action and cannot serve as the predicate for a second proceeding….” The landlord cited a recent Appellate Term, Second Department decision that it believed called into question, the holding in Nicolaides. See, Culhane v. Patterson, 54 Misc.3d 10 2016). Culhane stated that “the Appellate Division's recent decision in Matter of Georgetown Unsold Shares v. Ledet, (130 A.D.3d 99 (2015) calls into question the holding in Nicolaides.” In Ledet, the Appellate Division held that “a landlord's acceptance of unsolicited rent after the expiration of a lease does not, standing alone, amount to a voluntary relinquishment of the right to contest a tenant's possession on the basis that the leasehold is not the tenant's primary residence. Since the very essence of a waiver is the intentional relinquishment of a known right, a waiver cannot be created via negligence, oversight, or thoughtlessness.” Culhane “indicated that if acceptance of rent does not render a non-renewal notice stale, then a discontinuance 'should similarly not render such a notice stale, where a new proceeding is immediately commenced.'”

The subject court opined that the landlord's “reliance on Culhane is misplaced.” Culhane noted that “Nicolaides was distinguishable from the case it was addressing because Nicolaides involved dismissal of the prior proceeding while Culhane involved a discontinuance.” The landlord had attempted to compare the subject case to Culhane, since the landlord had “discontinued the second proceeding.” However, the subject court noted “it was the dismissal of the first proceeding that renders the Golub Notice stale.”

The subject court explained that “Culhane's analysis regarding the impact of Ledel on Nicolaides is irrelevant in the context of a dismissal of the prior proceeding.” “Dismissal requires an action by the court, not a voluntary action of petitioner that might have been the result of the negligence, oversight or thoughtlessness contemplated by Ledet.” Here, the first proceeding had been “dismissed after a traverse hearing.” The court held that such “dismissal rendered the Golub Notice stale” and the landlord cannot use such Golub Notice as the basis for the subject proceeding or any other proceeding. Absent a valid Golub Notice, the petitioner failed to state a cause of action. Accordingly, the court granted the tenant's motion to dismiss.

Cambridge Leasing Prop. v. Ortega, Civ. Ct., Queens Co., Index No. 66360/17, dated Jan. 10, 2018, Kullas, J.

Advertising—Property Owners Which Display Billboards, Challenged NYC Zoning Regulations, Alleging Violation of the First Amendment and an Uncompensated Regulatory Taking in Violation of the Fifth Amendment

The plaintiff property owners and lessees alleged that the city wrongfully permits billboards at the Citi Field baseball stadium, but bars similar billboards on the plaintiffs' nearby properties. The court dismissed the case.

The city has “long attempted to limit the visual blight and potential for danger that large billboards along its major thoroughfares may present.” The city had moved to dismiss the complaint, contending that “the city's zoning regulations [ZR] comport with the First Amendment and…that the court lacks jurisdiction to consider the Takings Clause claim because plaintiffs have not exhausted their state-law remedies.” The court granted the motion to dismiss, citing “on-point Second Circuit precedent,” with respect to the First Amendment claims and its lack of jurisdiction with respect to the Takings Clause claims.

ZR §§32-66, applicable in commercial districts, specifies that “no advertising sign shall be located, nor shall an existing advertising sign be structurally altered,…or reconstructed within 200 feet of an arterial highway or of a public park with an area of one half acre or more, if such advertising sign is within view of such arterial highway or public park.” ZR §42-55 embodies “substantially the same restriction in manufacturing districts.” The ZR bans entirely, off-site advertising signs in residential districts.

The city had created “a 'Special Willets Point District' in order to 'promote and protect public health, safety and general welfare' in the Willets Point neighborhood…, with the…purposes of, inter alia, 'transform[ing] Willets Point into a diverse and sustainable community that enhances connections to its surroundings'” by “'creat[ing] a retail and entertainment destination that catalyzes future growth and strengthens Flushing's role as a nexus of economic, social and cultural activity,'” and “'encourag[ing] a mix of uses that complement sporting venues within Flushing Meadows-Corona Park….'” Within the special district, the city permits owners of lots that are “greater than 200,000 square feet to exceed the 'floor area ratio' (FAR) of 2.0” that otherwise governs in the special district. For lots greater than 200,000 square feet in the special district, the FAR may be as high as 5.0.

The plaintiffs own properties where the city has prohibited outdoor advertising signs. One plaintiff had obtained a permit to construct a sign structure, had begun construction on that sign and the city had cancelled its permit. Since 2010, the other plaintiffs were “'forced to discontinue the use of their signs.'” The Mets have erected “outdoor advertising signs and accessory use signs 'that are located the same distances from arterial highways and parks as the outdoor advertising signs or accessory use signs of plaintiffs.'”

The court dismissed the First Amendment claims pursuant to Clear Channel Outdoor Inc. v. City of New York, 594 F.3d (2d Circ.).

In Clear Channel, the plaintiffs challenged New York City's decision not to enforce “the billboard regulations on property owned by the Metropolitan Transit Authority, the Port Authority, and Amtrak.” The Clear Channel plaintiffs contended that the city had “viewed increased revenues for mass transit—not aesthetics or traffic safety—as the paramount concern in actively supporting an exemption for Transit Authority signs from its zoning regulations,” and that the city had “made a concerted effort…not to enforce the Arterial Advertising Ban against billboards on any railroad property, including billboards on the MTA, LIRR, Conrail, Amtrak and other railroad or Port Authority property.” One Clear Channel plaintiff owned “smaller, illuminated signs” and had “separately challenged the city's zoning regulations” on the ground that such “regulations unfairly distinguished between its signs—which were prohibited—and those of a government contractor whose signs were allowed to be displayed on the outside of newsstands and street furniture pursuant to an exemption in the regulations.”

The U.S. Court of Appeals for the Second Circuit, in Clear Channel, rejected the aforementioned challenges, citing U.S. Supreme Court precedent which addressed “standards governing restrictions on commercial speech” in the context of a “city's zoning regulations.” The Supreme Court held that a city “must also show that (a) the restriction “'directly advances' the city's interest, and (b) it is not 'more extensive than is necessary to serve that interest.'” Clear Channel held that if the city's regulation of outdoor commercial advertising is “reasonable,” then courts “should defer to that determination.”

Clear Channel held that a prohibition against the use of unattractive signs, may be justified on aesthetic grounds even if it “'fails to apply to all equally unattractive signs wherever they might be located.'” Thus, Clear Channel explained that “[a] restriction on commercial billboards is not invalid,…, merely 'because it does not fully accomplish the articulated objectives'” and that despite the ZR's exceptions, the ZR “directly advances its interests in traffic safety and aesthetics.” Clear Channel rejected the argument that the ZR was “unlawfully under-inclusive,” because it “allowed the city to contract with a third party to put coordinated advertisements on street furniture.” It held:

The distinctions drawn by the Zoning Resolution between permissible and impermissible locations for outdoor commercial advertising are meaningful and do not defeat the purpose of the city's regulatory scheme. The city may legitimately allow limited and controlled advertising on street furniture, while also reducing clutter on city sidewalks. Allowing some signs does not constitutionally require a city to allow all similar signs…. The city's interests in aesthetics, preservation of neighborhood character, and traffic safety continue to be advanced, even though limited and controlled advertising is permitted on street furniture.

The plaintiffs attempted to distinguish their claims from the Clear Channel claims, by asserting that they were “challenging the city's decision to allow its own tenant 'to erect signs that are barred elsewhere,' a decision that 'cannot be justified under any esthetics or valid governmental purpose.'” They alleged that permitting the signs at Citi Field “is 'a money making scheme' for the city and its tenant 'at the expense of private parties who would be barred from the same conduct.'” The subject court rejected such argument and noted that the Clear Channel plaintiffs had “presented exactly” the same argument. The plaintiffs contended that “the [ZR] impermissibly favored signs on city-and state-controlled property” and Clear Channel rejected those claims, holding:

the city's interest in traffic safety and aesthetics justified its regulation of off-site advertising, and held foreclosed by Supreme Court precedent the argument that the “city violates the protections afforded commercial speech when it distinguishes between [plaintiffs'] signs or billboards and those located on government property.”

The plaintiffs also argued that Clear Channel was distinguishable since the Citi Field signs “are no more esthetically pleasing” than plaintiffs' signs and the Citi Field signs are “more distracting and overt than static advertising signs being prohibited elsewhere.” However, “'the Supreme Court has already rejected 'the argument that a prohibition against the use of unattractive signs cannot be justified on [a]esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located.'”

The court opined that even if Clear Channel were inapplicable, the complaint under the First Amendment claim would fail, because “the sign at Citi Field to which they object is not located within an area subject to ZR §32-662 (or ZR §42-55).” “ZR §32-662 applies within Commercial Districts (and the substantially similar [ZR] §42-55 applies in manufacturing districts).” Citi Field is located in neither district and therefore, the plaintiffs' objection, was “really directed at the city's decision to zone one area as commercial and another area—Citi Field—as a park not subject to the same restrictions.”

The court further explained that “the fact that a zoning regulation such as ZR §32-662 is, arguably, under-inclusive does not offend the First Amendment. A city may enforce its regulation on 'the use of unattractive signs…on [a]esthetic grounds' even 'if it fails to apply to all equally unattractive signs wherever they might be located.'”

Additionally, the court held that it lacked jurisdiction to consider the Takings Claim. The plaintiffs had not pursued their avenues for relief under New York State law and therefore, the Takings Clause claims are “not ripe for review in federal court.” Accordingly, the court dismissed the Takings Claims as well.

Mogul Media Inc. v. City of New York, U.S. District Court for the Southern District of New York, U.S., Case Number: 16 Civ. 9794, decided Dec. 22, 2017, Engelmayer, J.

Landlord-Tenant—Succession—Family Visited Relatives in Florida, But Did Not Intend to Relocate

A tenant of record died in September 2015. The landlord had brought a licensee holdover proceeding against the tenant's daughter. The daughter asserted that she had moved into her mother's apartment and lived continuously with her mother and sisters, since she was a small child. When the case had commenced in November 2015, the daughter and her son were living in Florida. The daughter had registered her son in school near her sister's home in Florida.

The daughter testified “credibly” that she, together with her mother and her son had gone to Florida for a visit in July 2015. The daughter explained “her mother, who was 85 years old and had a serious heart condition, wanted to see her other two daughters, both of whom lived in Florida.” The daughter testified that her mother had died and her “death was traumatic for the entire family” and that “[s]he remained in Florida for several months, partly to help one of her sisters, who was mentally ill.” The daughter had returned to New York briefly in November 2015, to see the father of her son and to check on her apartment. The daughter returned to New York permanently in March 2016.

The court found that “[s]ubstantial documentary evidence supports [the daughter's] testimony.” The court cited banking records, as well as the daughter's son's school and medical treatment records.

The court found that the daughter was “entitled to succeed to her mother's tenancy,” since she had “lived in the subject apartment with her mother from the inception of the tenancy decades ago until two months before her mother's death.” The court also noted that the daughter had “left her furniture and other belongings in the apartment.” The court explained that when the daughter went to Florida in July 2015 with her mother and son, she did not “move” there.

The court concluded that the trip was “intended to be a family visit, not a relocation.” When the daughter's mother died, the daughter had remained in Florida “longer than she had intended, in order to be with her extended family during a troubled time.” When the daughter returned to New York in March 2016, “she resumed her life as before, in the subject apartment.” Accordingly, the court dismissed the proceeding.

74-78 Post Ave. Heights Assoc. v. Reyes, Civ. Ct., N.Y. Co., Index No. 84856/15, decided Jan. 9, 2018, Schneider, J.
Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.