ATM FOUR v. Ramos

MARGARET C. REILLY, J. In view of the recent amendment of the Emergency Tenant Protection Regulations, the Court hereby vacates its earlier decision, sua sponte, and replaces it with the instant amended version. The petitioner instituted this summary holdover proceeding against the respondent, seeking to recover possession of real property located at 27 Attorney Street, apartment 1L, Hempstead, "acceptance form" which was allegedly signed by the respondent. The petitioner, however, acknowledges that said "acceptance form" was dated by its agent and not the respondent. Consequently, the Court will not credit the petitioner's claim that the respondent was timely served. Petitioner further argued that the respondent did not "cure" its wrongful act of failing to renew the lease because that violation, by its nature, is not curable. The petitioner thus contends that any purported renewal by the respondent is ineffectual. The Court disagrees. Prior to the amendment of the Emergency Tenant Protection Regulations, the Court held that a tenant's failure or refusal to accept an order of a renewal lease within the time period specified by law is not, by its nature, curable (see, Carriage House Realty Co. v Conlon, 128 Misc 2d 143 [Yonkers City Ct 1985]). The Court based its reasoning on the equivocal language in ETPR § 2503.5. The Court's reasoning in Carriage House v Conlon (supra) cannot be supported in view of the recent enactment of ETPR § 2503.5 (b) (2). This section states that "[w]here the tenant fails to timely renew an expiring lease or rental agreement * * * and remains in occupancy after the expiration of the lease, such lease or rental agreement may be deemed to have been renewed upon the same terms and conditions, at the legal regulated rent." The implication of this provision is that a default occasioned by a tenant's failure to timely renew a lease can be effectively cured where the tenant remains in occupancy and continues to pay the applicable rent. In any event, respondent does not allege that she renewed her lease. Rather, she contends that she executed a new lease agreement with the petitioner. The petitioner's agent acknowledged that a lease is now in effect. The petitioner does not refute the respondent's claim that the rent payable under the new lease is indexed at a higher rate than would have been applicable if the lease were merely a renewal. Thus, even assuming that the renewal notice was served in accordance with the applicable statute, petitioner's subsequent decision to execute a new lease agreement with the respondent would no doubt have precluded the Court from granting the petitioner's motion to evict the tenant under the subject lease. In view of the foregoing, the Court is constrained to dismiss the instant holdover proceeding.