WHEN LANDLORD FAILS TO GIVE PROPER NOTICE OF RENT INCREASE

The 2019 changes to the rent laws passed in 2019 require that landlords give market-rate tenants who have resided for more than one year at least 60 days notice if they intend to raise the rent by at least five percen and must give tenants who have resided more than two years 90 days notice. But the law does not stipulate what to do when a landlord fails to give the required notice and there is no clear remedy other than RPL 226-c (a) statement that "If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary."

1641 PARK AVE. ASSOC. v. Parker, 2022 NY Slip Op 30519 - NY: Supreme Court 2022:

"The plaintiff has not established that it is entitled to relief on its second cause of action, which seeks ejectment, a judgment of possession referable to the subject premises, and the issuance of a writ of assistance. The 2019 Housing Security and Tenant Protection Act (HSTPA) provides, in pertinent part, that

"[w]henever a ... landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary"

(L 2019, ch 36, Part M, § 3; RPL 226-c[1] [emphasis added]). Where, as here, "the tenant has occupied the unit for more than two years ... the landlord shall provide at least ninety days' notice" (RPL 226-c[2][c]).

This court concludes that RPL 226-c applies to all tenancies, and is applicable to both common-law ejectment actions and RPAPL holdover proceedings. There is nothing in this mandatory directive, or in any part of the HSTPA, that suggests that its application is somehow limited only to landlords who elect to commence special proceedings pursuant to RPAPL (cf. Armstrong Realty, Inc. v Roche, 2021 NY Slip Op 30640[U], 2021 NY Misc LEXIS 867 [Sup Ct, Kings County, Mar. 3, 2021] [holding that the recently enacted RPL 226-c did not apply to common-law ejectment actions]; Paz Rentals, LLC v Bryer, 2021 NY Slip Op 30916[U], 2021 NY Misc LEXIS 1276 [Sup Ct, Kings County, Mar. 22, 2021] [same]). In any event, although "[t]he common law does not require a notice to terminate a tenancy of a definite term, ... it does require a notice to quit to remove a tenant of an indefinite term by an ejectment action" (id., 2021 NY Slip Op 30916[U], *3, 2021 NY Misc LEXIS 1276, *4]; see Gerolemou v Soliz, 184 Misc 2d 579 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2000]; Hsiu v Trujillo, 192 Misc 2d 147 [Sup Ct, Bronx County 2002]).

Initially, the statutory notice required here was not a notice of termination, but a notice of nonrenewal. Consequently, the above rule dispensing with the requirement for notices of termination in common-law actions is inapplicable. Moreover, the plaintiff here not only failed to give the defendant notice that it intended not to renew his one-year lease, but failed to give him notice, even after the expiration of his lease, when his alleged "tenancy" became indefinite, that his tenancy was being terminated. In fact, the first formal notice that the defendant received that his tenancy was being terminated was on November 13, 2020, when the plaintiff served him with the summons and complaint in this action, along with papers in support of its motion for a preliminary injunction. That date was more than three months after the term of the defendant's lease had expired.

Hence, the plaintiff has not established, through its moving papers, that it provided the defendant with the required statutory notice, or any notice whatsoever. As such, the branch of the plaintiff's motion which is for summary judgment on its second cause of action, seeking ejectment, a judgment of possession, and the issuance of a writ of assistance, must be denied, regardless of the sufficiency of any opposition papers. Moreover, "it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court" (Schwartz v Town of Ramapo, 197 AD3d 753, 756 [2d Dept 2021], quoting Zhigue v Lexington Landmark Props., LLC, 183 AD3d 854, 856 [2d Dept 2020]). inasmuch as the court concludes that the provision and service of that 90-day notice of nonrenewal was a condition precedent to the commencement of a holdover proceeding pursuant to RPAPL or a common-law action for ejectment, that the plaintiff was required to submit such notice a condition to obtaining relief, and that the parties' submissions do not suggest that notice was actually provided, the court further concludes that no notice was, in fact, provided. The court thus searches the record and awards summary judgment to the defendant dismissing the second cause of action.

The dismissal of the second cause of action is, however, without prejudice to the plaintiff's commencement, in the Civil Court, of a proper holdover proceeding or proceeding to recover possession pursuant to the RPAPL after providing the defendant with the proper 90-day notice of nonrenewal pursuant to RPL 226-c. "Civil Court has jurisdiction of landlord tenant disputes ... and when it can decide the dispute, as in this case, it is desirable that it do so" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984]; Lexington Ave. Assocs. v Kandell, 283 AD2d 379, 379 [1st Dept 2001])."