83rd Street Associates v. Beldough

— Order of the Appellate Term (Dudley, P. J., Hughes and Parness, JJ.), entered July 11, 1985, which reinstated the petition and reversed the order of the Civil Court, New York County (David Saxe, J.), entered October 10, 1984, which granted reargument and, on reargument, adhered to the original decision granting respondents’ cross motion to dismiss the landlord petitioner’s holdover petition, but held that respondents were not entitled to attorney’s fees, unanimously reversed, on the law, and the order of the Civil Court reinstated, with costs.

In this matter before this court pursuant to leave, the respondent-appellant Michael Beldough, a tenant at 25 East 83rd Street, took an assignment of a lease for another apartment in the same building, with the landlord’s approval, which assignment agreement was signed as "attorney-in-fact” by Michael Beldough’s mother, who has since occupied that apartment.

When the lease was due to expire in November 1983, an extension agreement was sent by the landlord for a renewal lease, providing that receipt by the landlord "of this letter signed by you shall constitute a binding agreement between us”. Michael Beldough signed, as indicated, and forwarded it to the petitioner landlord.

In February 1984, the landlord informed Michael Beldough that it did not intend to renew the lease, and, thereafter, served him with a 30-day notice of termination based on his nonprimary residence in that apartment in which the mother resided.

We have recently determined that a landlord is precluded from commencing an action to recover possession on the ground of nonprimary residence where the landlord fails to give the required window period notice of 150-120 days. (See, Crow v 83rd St. Assoc., 116 AD2d 1048.)

This provision not having been complied with, it is unnecessary for us to consider the various other ramifications and issues raised in the case. Concur — Kupferman, J. P., Sandler, Carro, Fein and Rosenberger, JJ.