For the past few years there has been a developing trend in Brooklyn and Queens for some judges to try on occasion to dismiss non-payment cases where there was no current lease in effect when the case was commenced.

When we say “commenced” the law generally implies this means at the time of service of the petition being fully completed. The law says if service is accomplished by means other than delivery in person to the tenant, then service is not completed until the server files proof of service with the clerk of the court.

Doing business responsibly

This occasional problem now has become magnified as a result of recent Appellate case law in the 2nd Judicial Department (comprising Brooklyn, Staten Island and Queens) which gives judges in those counties clear and compelling direction to dismiss cases where there was no lease in effect at the time the non-payment case was commenced.

Up until this dramatic change, when a Rent Stabilized tenant’s lease had expired, if there was some payment of rent afterwards, the housing courts in the 2nd Dept. would generally allow non-payment cases to proceed in spite of this deficiency. However with the advent of the recent Appellate case law, where the tenant’s lease had expired prior to the commencement of the non-payment case, the courts now can either sua sponte (on their own) or upon the request of the tenant dismiss the proceeding.

This concept of having a current lease when the non-payment case is “commenced” has become even more fraught with peril since although a landlord may promptly order a non-payment case to begin (generally by the service of a 14 Day Rent Demand), if the tenant afterwards still fails to pay, the time now to receive an Index Number (so the Petition can be served ) has been significantly delayed by the court. If the tenant’s lease expires between the time when the Rent Demand is served and when the Index Number is finally issued, this will mean there was no lease in effect when the action was commenced and will be grounds for dismissal.

The take away from all of this is that for Rent Stabilized tenants, landlords must be pro active and dutiful in making sure lease renewals are properly filled out and served on their tenants between 150-90 days before the current lease is due to expire. The manner of service for lease renewal offers is recommended to be either in person delivery or first class mail with certificate of mailing (not by certified mail since if not accepted it may be returned or sent to the post office). If the tenant fails to sign (and fill in their choice of renewal terms) and return it to the landlord within 60 days of receipt, the landlord may pursue an holdover eviction case based upon such lease non-renewal.

The real voyage of discovery consists not in seeking new landscapes, but in having new eyes. Keep your eyes on the stars and your feet on the ground.

Marcel Proust

For non-regulated tenants (1-5 units, free market or otherwise exempt), if there is no current lease (or one is about to expire), then the clear choice is to bring a no lease holdover. Take note that since 2019, even non-regulated tenants are entitled to receive a 30, 60 or 90 day notice of termination of their tenancy prior to the commencement of a holdover eviction proceeding..but to save time, these notices may be served in advance of the actual lease expiration in the form of an intention not to renew.

While it may be true that some tenants and their attorneys may choose to not take advantage of this recent Appellate doctrine and instead choose to settle their non-payment cases (even if no current lease had existed on commencement), this hopeful thinking cannot be assumed. Furthermore, some tenants and their attorneys may use this fatal flaw in the landlord’s case to champion a far better settlement for themselves. It is therefore imperative that Rent Stabilized landlords immediately review all of their lease renewal expiration dates, in order to avoid missing the 150-90 day window period for the serving of lease renewals….and if the tenant fails to sign and return the lease renewal within 60 days, then to immediately start an eviction proceeding based upon such non-renewal.