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Failure to renew causes tenant eviction.

A recent decision by the Appellate Term, Second Judicial Department, resulted in a rent-stabilized tenant forfeiting her apartment of 14 years based upon the tenant's failure to timely respond to the owner's offer of i renewal lease. In awarding a final judgment of possession to the landlord, the Appellate Term applied a strict interpretation of a rent stabilized tenant's obligation to respond to an offer of renewal. Moreover, an equally restrictive application of a tenant's right to cure a default was applied, such that no further opportunity to renew was provided.

In Maple Realty Corp. vs. Nelson, N.Y.L.J., March 12, 1993, p. 33, col. 1, the appellate court was called upon to examine a scenario wherein a tenant had failed to timely respond to an owner's offer of a rent-stabilized renewal lease. This resulted in the Civil Court awarding a final judgment of possession to the owner, but staying issuance of the warrant of eviction so that the tenant would be permitted a further opportunity to cure her default; that is, the tenant would be given yet another chance to renew.

Section 2523.5 of the Rent Stabilization Code provides that an owner shall offer a tenant a choice of a one or two-year renewal lease not more than 150 days and not less than 120 days prior to the expiration of the tenant's lease term. Once offered, the tenant shall have 60 days from the date of service of the notice to accept the offer and renew the lease. If the tenant fails to timely respond to the offer of renewal, the tenant may be subject to eviction pursuant [SECTION] 2524.3(f).

In Maple Realty Corp., the Civil Court apparently found that the tenant had been properly provided with all of the predicate notices pertaining to her non-renewal. However, after awarding a judgment of possession to the landlord, the Civil Court stayed the warrant of eviction for 10 days, so as to permit the tenant to sign the renewal lease. This additional grace period for execution of the renewal lease was predicated upon the Civil Court's interpretation of RPAPL [SECTION] 753(4) which provides that the court may stay the issuance of the warrant of eviction for 10 days to permit a tenant to cure a default where the holdover proceeding is based on a claim that "the tenant or lessee has breached a provision of the lease."

On appeal, the owner challenged the application of RPAPL [SECTION] 753(4) to these facts and circumstances. The Appellate Term unanimously agreed and modified the final judgment so as to delete the stay of the issuance of the warrant and the provision permitting the tenant with a further opportunity to renew.

The appellate court noted that the 10-day cure period created by RPAPL [SECTION] 753(4) was limited to a breach of the lease. The Court found that:

"[T]he alleged breach was not lease related, but was a violation of the provisions of the Rent Stabilization Law. The failure of the tenants to timely renew their lease does not, therefore, generate any relief for them under the provision of the RPAPL quoted above".

The Appellate Term's interpretation of the Rent Stabilization Law and Real Property Actions and Proceedings Law was predicated upon the plain language of the statutes. Moreover, the Appellate Term's analysis puts some teeth into an owner's remedy which has, all too often, been reduced to nothing more than a slap on the wrist. Frequently, owners have been forced to bear the time and expense of bringing tenants to court based upon their failure to renew, only to have the court vitiate the owner's rights by creating extended renewal period for the tenant. This recent decision should serve to place both owners and tenants on notice that a tenant's failure to timely respond to an offer of renewal, if vigorously pursued by the owner in the courts, can result in the strict application of the law and potential recovery of possession of the housing accommodation.
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Title Annotation:Maple Realty Corp. vs. Nelson Appellate Court case
Author:Belkin, Sherwin
Publication:Real Estate Weekly
Date:Mar 31, 1993
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