Recitation, as required by the CPLR §2219(a), of the papers considered in the review of this motion for discovery.Papers NumberedNotice of Motion & Affidavits Annexed 1Notice of Cross-Motion & Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3ExhibitsMemorandum of lawDECISION/ORDER Upon the foregoing cited papers, the decision and order of this motion is as follows:In this holdover proceeding, Rili Lin (“Petitioner”) seeks to recover possession of the rent stabilized premises located at 937 East 29th Street, 3rd Floor, Rear Left Room, Brooklyn, New York 11210 (“Premises”) from Faigy Rachel Weiss (“Respondent”) on the ground that Petitioner requires the Premises for use and occupancy of Petitioner’s immediate family members or owner use pursuant to the Rent Stabilization Code (RSC) §2524.4(a). On June 30, 2018, Petitioner served Respondent with a notice of nonrenewal (“Golub Notice”) dated June 28, 2018, which expired on September 30, 2018. This proceeding first appeared on the court’s calendar on October 25, 2018. Issue was joined on October 30, 2018.Respondent now moves this court to dismiss this proceeding on the ground that the Golub Notice was untimely, or in the alternative for leave to conduct discovery. Respondent maintains that the Premises is subject to rent stabilization, and as Respondent’s last lease expired on April 30, 2015, to be timely, a Golub Notice must have been served between December 1, 2014 and January 30, 2015.Petitioner opposes the motion and asserts that Respondent’s expired lease was not subject to rent regulation as the Premises was not adjudicated rent stabilized until after the expiration of Respondent’s lease.The Law and Its ApplicationLike proceedings based on non-primary residence, service of a notice of nonrenewal during the statutory window period is a jurisdictional prerequisite in a holdover proceeding where the landlord seeks possession of a rent stabilized unit based upon owner use. RSC §2524.2(c)(3), Golub v. Frank, 65 N.Y.2d 900 (1985), Ansonia Associates v. Rosenberg, 163 A.D.2d 101 (1st Dept 1990). Failure to serve a Golub Notice within the requisite window period precludes the commencement of a holdover proceeding on the grounds of owner use until a renewal lease is executed and the window period opens again prior to the expiration of that renewal lease. Ansonia Associates, 163 A.D.2d at 103; Nussman Resources I LLC v. Gilmartin, 4 Misc. 3d 80 (App. Term, 1st Dept 2004). If there is no lease between the parties for a rent stabilized unit, there can be no “window period” and any Golub Notice is invalid. See, e.g., 160 Eagle Street, LLC v. Butler, 58 Misc. 3d 398, (Civ. Ct., N.Y. Co. 2017).Although Respondent treats the branch of the motion as one seeking dismissal, since issue has been joined, such relief is no longer available to Respondent under this posture. However, as the facts of this proceeding are undisputed, and purely a legal question remains, it is within the court’s discretion to treat this motion as one seeking summary judgment. Mihlovan v. Grozavu, 72 N.Y.2d 506, 508 (1988) citing Four Seasons Hotel v. Vinnik, 127 A.D.2d 310, 320 (1st Dept 1987). The standard for summary judgment is clearly articulated in CPLR §3212. The function of summary judgment is issue finding, not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1957). In other words, the court cannot resolve factual issues on a motion for summary judgment. Schwartz, Karlan & Gutstein v. 271 Venture, 172 AD2d 226, 228 (1st Dept. 1991). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). Summary judgment should be denied when the court finds that there exists or determines that it is arguable that there is a genuine issue of fact. See S.J. Capelin Associates v. Globe Manufacturing Corp., 34 N.Y.2d 338 (1974).The court finds that Respondent has established entitlement to an award of summary judgment in this proceeding. It is undisputed that the Premises is subject to coverage under the rent stabilization law based upon the March 23, 2018 Decision/Order by Judge Marton, which is the law of the case. Lin & He v. Weiss, Index No. L&T 060885/16, March 23, 2018, Civ. Ct. Kings County). It is also undisputed that there has not been a renewal lease between the parties since Respondent’s most recent lease expired on April 30, 2015. Despite Petitioner’s arguments to the contrary, once the Premises was found to be rent stabilized, Respondent was entitled to a renewal lease. The failure of Petitioner’s predecessor-in-interest or Petitioner to offer same does not deprive Respondent of her rent stabilized tenancy rights and does not relieve Petitioner of the requirement to timely service all predicate notices. Absent a current renewal lease in effect, there is no window period in existence for Petitioner to timely serve the required Golub Notice on Respondent. Without a timely served Golub Notice, an owner use holdover proceeding cannot be maintained. Here, the Golub Notice was served years after the expiration of the last lease, and well outside of the statutory window period.Accordingly, Respondent’s motion is granted. The Petition is dismissed with prejudice. The branch of Respondent’s motion seeking discovery is thereby deemed moot.This constitutes the decision and order of this court.Dated: December 20, 2018Brooklyn, New York
