Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of motion and affidavits annexed 1Order to Show Cause and affidavits annexedAnswering affidavits 2Replying affidavits 3ExhibitsStipulationsOtherDECISION/ORDER The within holdover proceeding is before the Court on respondents’ motion to dismiss. Though respondents raised numerous grounds for dismissal, on the argument respondents’ counsel asked the Court to limit its inquiry to only one issue, that being, was the Notice of Intent Not To Renew the Lease (the Golub Notice) served within the “window period”, i.e., that period between 90-150 days prior to the expiration date of the then existing lease during which a landlord would, were it not for the Golub Notice, be required to offer respondents a renewal lease pursuant to the Rent Stabilization Code (RSC 2524.2[c]). Petitioner opposes the motion, pointing to a decision by the Division of Housing and Community Renewal (DHCR), dated June 7, 2018, filed by respondents herein against petitioner herein, where the DHCR found that “The tenant was properly served with the Notice of the owner’s intention not to renew the lease expiring on April 30, 2000…” (emphasis added). To this the Court can only say HUH?Respondents’ basic argument, when boiled down to its essence, is that there is no current signed lease, and without an unexpired lease in effect, there is no window period for the Golub Notice to be served within. Petitioner argues that respondents, by filing a complaint with the DHCR, chose their forum and cannot now relitigate the issues already decided by that Agency. To the Court’s knowledge no Petition for Administrative Review (PAR) was filed challenging the decision referenced, nor has an Article 78 proceeding been instituted by respondents challenging that DHCR decision. Petitioner argues that, respondents, having chosen their forum, are stuck with its decision and this Court, noting that the Agency and the Court have concurrent jurisdiction, is bound to follow and enforce that decision. Normally that is the law as this Court is not an appellate court but a court of original, and limited, jurisdiction and, usually, bound by decisions of the DHCR, it being for other Courts of this State, which have greater jurisdiction, to decide if the DHCR decision is sustainable. But, this Court is bound more by the decisions of the Appellate Division and the Appellate Term than it is by the DHCR, and refuses to follow or enforce the DHCR decision herein, which the Court finds to be wrong on the law as same is under current decisional law.The facts of the case are that respondent Carlos Hernandez was the building superintendent since approximately March, 1990, and signed a rent stabilized lease for the subject apartment, designated as the first lease (exh. 1 to the moving papers) on April 11, 1992, for two years starting May 1, 1992, expiring on April 30, 1994. Nobody challenges respondents rent stabilized status. Respondents offer as the last lease (exh. 2 to the moving papers) a renewal lease dated December 15, 1997, with an inception date of May 1, 1998, containing no signatures for landlord nor tenants. But, petitioner alleges that, that lease was rejected by respondents, as was a renewal offered in 1995 (exh.2 to responsive papers). There is no mention of any renewal lease having been offered, or signed, prior to 1995, and respondents’ rent has never increased from the $825 monthly rent set forth in the original lease signed in 1992. Petitioner states that it stopped offering renewal leases to respondents after they rejected the second renewal offered in 1997.The Court notes that no mention is made of any prior holdover proceeding against respondents for their failure to sign a renewal lease, and the only lease offered that was signed by anyone is, apparently, the original lease from 1992, which, as noted above, expired on April 30, 1994. Since renewal leases cannot be deemed renewed (Samson Mgt., LLC v. Hubert, 28 Misc.3d 29, 905 N.Y.S.2d 438, 2010 N.Y. Slip Op. 20196 [AT, 2nd Dept]), and petitioner does not claim to have deemed any leases renewed, and never raised the rent after the initial lease expired, that is determined to be the only lease ever to exist between the parties. Thus, the Court is at a loss to understand how the DHCR could determine that the Golub Notice was served within the window period of a lease expiring on April 30, 2000, which lease both sides concede was never signed and thus never took effect.A little history is in order. Rent stabilized tenants are entitled to lease renewals upon the expiration of their lease term, but, an owner can refuse to renew a lease for certain specified grounds in the Rent Stabilization Law (RSL) and the RSC. Those grounds include owner occupancy (aka personal use), which can be for the actual owner’s use or for use by the owner’s immediate family (9 NYCRR 2524.4(a) — the RSC) (see West Practice Guide — Residential Landlord-Tenant Law in New York, 2018-2019 Edition, 8:282, hereinafter West). The notice of the landlord’s intent not to renew the lease must be served within the “window period” as set forth herein above (Golub v. Frank, 65 NY2d 900, 493 NYS2d 541[CANY, 1985], West 8:283). This notice is colloquially known as the Golub Notice, so named for the above cited case, wherein the Court of Appeals determined that if the landlord fails to serve a timely notice of intent not to renew, the tenant is entitled to a renewal lease (Golub v. Frank, supra., West 8:283). The issue of the bringing of a Golub Notice proceeding when there is no current lease in effect was determined in Ansonia Assoc. v. Rosenberg, 163 AD2d 101, NYS2d 349, (AD 1st Dept, 1990). In Ansonia, supra, the petitioner commenced an action for declaratory judgment claiming that the respondents were not using the apartment in question as their primary residence and seeking their ejectment (Ansonia at p. 102), and “The IAS court held that as a jurisdictional prerequisite for a nonprimary residence action, the landlord must serve a notice of intention not to renew the lease during the ‘window period’, between 150 and 120 days prior to the expiration of the prior lease,…”(at p. 102) (the Court notes that such window period was subsequently adjusted to 150-90 days prior to the expiration of the prior lease). The Court in Ansonia then went on to say: “There being no rent-stabilized lease in effect, the landlord has no basis for a nonprimary residence action at this time. The issue of ‘primary residence’ is relevant only in the context of the Rent Stabilization Code. Absent the regulatory rent laws, a landlord would be free to limit a tenancy to the term covered by the lease between the parties and would not be obligated to offer a renewal lease. The rent stabilization laws,…, confer certain rights and obligations, among the most important of which is the right of a rent-stabilized tenant to a renewal lease, provided that the apartment in question is maintained as the tenant’s primary residence. Where the apartment is not maintained as a primary residence,…the landlord is relieved of the regulatory obligation to offer the tenant a renewal lease. The fact that the tenant is not using the apartment as a primary residence during the lease term does not entitle the landlord to eviction during that term, but only entitles the landlord not to renew the lease. A jurisdictional prerequisite to nonrenewal of a stabilized lease on the basis of nonprimary residence is that the landlord have served a notice of nonrenewal during the specified window period prior to the expiration of the existing lease term.”(at p. 102, emphasis added, citations omitted). This is, and remains the law, the Golub Notice must be served within the window period PRIOR to the expiration of the EXISTING lease, and if there is no existing lease, there can be no Golub Notice served as there is no window period within to serve it (533 W. 144th LLC v. Severino, 62 Misc3d 136(A), 2018 NY Slip Op 51945(U)(AT 1st Dept, 2018), Nachajski v. Siwiec, 55 NYS3d 693, 2017 NY Slip Op 50438(U)(AT 2nd Dept, 2017), ["Failure to serve a nonrenewal notice within the requisite period forecloses the landlord's opportunity to commence a nonprimary residence proceeding until a renewal lease is executed and the same window opens again prior to the expiration of the renewal lease."], Nussbaum Resources I LLC v. Gilmartin, 781 NYS2d 552, 2004 NY Slip Op 24239 (AT 1st Dept, 2004), West 8:284 ["…no lease, no window period; no window period, no notice of non-renewal; no notice of non-renewal, no non-primary residence proceeding."]). That these cases were based upon allegations of nonprimary residence is of no moment, the salient issue is that they all involve the failure to serve the Golub Notice during the requisite window period prior to the expiration of the existing lease. A Golub Notice is a Golub Notice is a Golub Notice, and the law must be followed. Since the decision of the DHCR is in direct contravention of the law as set forth by the Appellate Division in the Ansonia decision, and this Court is bound by that decision, the within proceeding is dismissed as petitioner failed to serve the Golub Notice within the requisite window period prior to the expiration of the existing lease. Petitioner is ordered to offer respondents a renewal lease, and should seek counsel’s advice if respondents yet again refuse to sign same.This is the decision and order of the Court. Copies are being mailed to both sides.Dated: March 14, 2019Bronx, New York
