Recitation, as required by CPLR §2219 [a], of the papers considered in review of Respondent’s Order to Show Cause and Petitioner’s MotionPapers NumberedRespondent’s Order to Show Cause 1Petitioner’s Notice of Motion 2Attorney Affirmation in Further Support of Paz Cisneros’ Motion to Dismiss and For Further Relief, and IN Opposition to Petitioner’s Motion to Strike the Answer 3Petitioner’s Affirmation in Opposition 4DECISION/ORDER Upon the foregoing cited papers, the Decision and Order is as follows:BACKGROUNDPetitioner, 1500 Grand Concourse Owners, LLC, commenced this nonprimary residence holdover proceeding against Respondents Pedro Martinez, Miguel Cisneros, and Paz Cisneros seeking to recover possession of 1500 Grand Concourse, Apartment 52A, Bronx, New York 10457. Petitioner previously moved this Court for discovery and for the payment of use and occupancy. In a Decision/Order dated December 12, 2018, the Hon. Diane Lutwak granted the requested relief by ordering the Respondents to comply with Petitioner’s document production request by January 11, 2019 and by ordering the payment of four months of use and occupancy at a monthly rate of $920.67 by December 28, 2019. Respondents were required to pay ongoing use and occupancy by the 15th of each month. The Decision/Order also directed the Respondents to serve and file their Answers by December 28, 2018.Respondent Paz Cisneros has now moved by Order to Show Cause seeking an Order staying the instant proceeding. In the alternative, Respondent Cisneros moves to dismiss this proceeding pursuant to CPLR §3211 [a][1] and CPLR §3211[a][7] on the ground that the Petitioner vitiated its Golub notice by offering a rent stabilized renewal lease. Although Petitioner has cross-moved to strike the Answer submitted by the Respondents, the motion was withdrawn. Accordingly, Respondent Paz Cisneros’ Order to Show Cause is the only motion requiring disposition.DISCUSSIONIt is undisputed by the parties that the Petitioner effected service of a “90-150 Day Notice of Intent Not to Renew For Non-Primary Residence” on August 30, 2017. Thereafter, on September 9, 2017, Petitioner effected service of a “Thirty-Day Notice of Termination to Tenant”. It is further undisputed that the Petitioner offered a rent stabilized renewal lease dated August 7, 2017. The Respondents Pedro Martinez and Paz Cisneros accepted the renewal lease offer on September 5, 2017 and agreed to a two year lease term commencing on December 1, 2017 and ending on November 30, 2019.Here, Petitioner’s renewal lease offer, timely accepted by the Respondents, created an enforceable lease agreement, notwithstanding the Petitioner’s service of a notice of nonrenewal (SJS Thompson LLC v. Singer, 60 Misc.3d 132 [A] [App Term 1st Dept 2018]; Herman for Benefit of Herman v. Meryn, 159 Misc.2d 851 [Civ Ct, New York County 1993, Ryp, J.]; Steinmetz v. Barnett, 155 Misc 2d 98[Civ Ct, New York County 1992, Braun, J.]). Where, as here, both a nonrenewal notice and a renewal lease were served within the window period, the renewal lease controls. Petitioner’s contention that it cannot be held to the lease agreement because it was never signed by the Petitioner is unavailing. Appellate case law has reject similar arguments on the ground that a tenant’s execution and delivery of the renewal lease resulted in a binding bilateral contract (Jacreg Realty Corp. v. Barnes, 284 AD2d 280 [1st Dept 2001]). Moreover, there is no indication in the record that the renewal lease offer was mistaken or inadvertent and, given the same, the Petitioner took prompt steps to withdraw an errant offer (see e.g. FS 41-45 Tiemann Place LLC v. Estrella [App Term, 1st Dept 2012]).CONCLUSIONAccordingly, based on the above, Respondent’s motion is GRANTED and the petition is dismissed without prejudice as the Petitioner vitiated its notice of non-renewal.This constitutes the decision and order of this CourtDated: March 4, 2018Bronx, New York
