Petitioner commenced a non-primary residence holdover proceeding seeking possession of the rent stabilized premises. Respondents, Anthony Collura and Denis Kubiak, seek dismissal of this proceeding or, in the alternative, partial summary judgment. Petitioner cross moves to dismiss affirmative defenses and counterclaims and seeks discovery and use and occupancy.

Respondents claim that the Notice of Non-Renewal of the Lease is defective because it fails to name Denis Kubiak. Respondents provided an agent of Petitioner with a copy of the marriage license between the named respondents. The agent, Anna Mena, acknowledged receipt of the marriage license as evidenced by a signed certified mail receipt dated Sept. 7, 2011. The tenant of record, Anthony Collura, requested that his spouse, Denis Kubiak, who has lived in the premises since 1989 be added to the lease pursuant to 9 NYCRR 2522.5(g)(1). Respondents did not receive a response from Petitioner.

On Nov. 22, 2011, petitioner served a Notice of Non-Renewal of the Lease stating that the lease would not be renewed based on the non-primary residence of Anthony Collura. Petitioner does not dispute that Denis Kubiak resides in the premises and that an agent of the petitioner, Anna Mena, received a copy of the marriage certificate and a request for Denis Kubiak to be added to the lease. Petitioner contends that there was no duty to include Denis Kubiak on the lease and on the predicate notice because his name was not on the lease renewal and his claim is relegated to a claim of succession.

Respondent requests dismissal based upon a documentary evidence defense pursuant to CPLR 3211(a)(1). This defense is granted only where the documentary evidence completely refutes petitioner's factual allegations and establishes a defense as a matter of law Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]. The law is clear and unambiguous. A tenant shall have the right for the spouse to be added as a tenant upon proof of marriage. Spouses have a superior position to other immediate family members.

Petitioner completely ignores this fact by relegating Denis Kubiak's rights to those of successor in interest. Petitioner's argues that Denis Kubiak need not be named because he was not named as a tenant on the most recent lease renewal. This is not a defense because respondent married Denis Kubiak after issuance of the lease renewal. Subsequent to the marriage, respondent requested that petitioner add his spouse to the lease. Once petitioner is informed that Denis Kubiak is the lawful spouse of Anthony Collura and respondent makes a request to include the spouse as a co-tenant, petitioner has a statutory duty under the Rent Stabilization Code 9 NYCRR 2522.5(g)(1) to recognize Denis Kubiak as a tenant and add him as a tenant on the lease effective on the date such notice is received. In this instance the effective date is September 7, 2011. So, too, petitioner had a duty to include Denis Kubiak as a tenant in the Golub Notice and serve him individually with the papers in this proceeding. The failure to name Denis Kubiak renders the predicate notice defective. Accordingly, the proceeding is dismissed.

This constitutes the decision and order of the court.

Dated: New York, NY______________________________________ [*2]

August 2, 2012Hon. John Stanley

Judge, Housing Court