Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated January 3, 2011. The order denied landlord's motion for leave to conduct discovery and granted tenant's cross motion to dismiss the petition.

ORDERED that the order is affirmed, without costs.

In this holdover summary proceeding to recover possession of a rent-stabilized apartment on the ground that tenant did not occupy the apartment as her primary residence (see Rent Stabilization Code [9 NYCRR] § 2524.4 [c]), the record establishes that 120 to 150 days prior to the April 30, 2010 expiration of the lease, landlord served upon tenant, by personal delivery at her address in Florida, a notice advising her of the basis for the nonrenewal of her lease. After the expiration of the lease, landlord accepted rent for the month of May 2010 prior to commencing this proceeding. It is unnecessary, in the circumstances presented, to determine whether landlord's acceptance of rent for the month of May 2010, after the April 30, 2010 expiration of the lease, entitled tenant to a renewal lease or merely created a month-to-month tenancy (see Martine Assoc., LLC v Donahoe, 11 Misc 3d 129[A], 2006 NY Slip Op 50294[U] [App Term, 9th & 10th Jud Dists 2006]). If tenant is entitled to a renewal lease, the proceeding fails on that basis. If she is merely a month-to-month tenant, she was entitled to a 30-day notice (see Real Property Law § 232-a; Weiden v 926 Park Ave. Corp., 154 AD2d 308 [1989]), which was not served. In either case, the petition must be dismissed.

Accordingly, the order is affirmed.

Weston, J.P., and Aliotta, J., concur.

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

In my view, landlord's acceptance of rent for the month of May 2010, after the April 30, 2010 expiration of the lease, entitled tenant to a renewal lease. Upon the expiration of a rent-stabilized lease, the tenancy is either terminated by compliance with the procedural requisites of Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2 and the commencement of a [*2]summary proceeding or renewed pursuant to RSC (9 NYCRR) § 2523.5 (see 205 E. 78th St. Assoc. v Cassidy, 192 AD2d 479 [1993]). Landlord's acceptance of the May 2010 rent nullified the April 30, 2010 termination date of the nonrenewal notice, thereby rendering the notice ineffectual, as it did not comply with the requirements of RSC (9 NYCRR) § 2524.2 (a) (see id.). I would affirm the order on this ground.
Decision Date: May 03, 2012