Tenant appeals from an order of the Civil Court, New York County, dated August 1, 2003 (Gerald Lebovits, J.) denying his motion to dismiss the petition in a holdover summary proceeding.

PER CURIAM:

Order dated August 1, 2003 (Gerald Lebovits, J.) reversed, with $10 costs, and tenant's motion to dismiss the holdover petition is granted.

The facts are not in dispute. In anticipation of the expiration of the tenant's rent stabilized lease on May 31, 2003, landlord served a notice of nonrenewal on February 19, 2003 advising that the lease would not be renewed because of tenant's failure to occupy the premises as [*2]his primary residence. On April 10, landlord offered to renew the lease, which offer was accepted by tenant on or about April 15 when he executed the standard renewal lease form and selected a two year renewal. Landlord never executed or returned the renewal lease, and there was no further communication between the parties until landlord's commencement of eviction proceedings on June 2, 2003.

In denying tenant's dismissal motion, Civil Court reasoned that landlord was not bound by its renewal offer because it was made outside the 90-150 day "window period" prescribed in the Rent Stabilization Code (9NYCRR 2523.5[a]). However, as we read the Code, a belated offer of a renewal lease cannot prejudice the tenant. Acceptance by the tenant created a binding lease agreement on the terms included in the offer, and superseded the prior notice of nonrenewal (see Steinmetz v Barnett, 155 Misc 2d 98). "The fact that the landlord may not have intended the proposed lease . . . to constitute a binding offer is immaterial because the statute requires that the offer be binding" (Matter of East 56th Plaza, Inc. v New York City Conciliation & Appeals Board, 56 NY2d 544, 546; see also, Jacreg Realty Corp. v Barnes, 284 AD2d 280).

A tenant should not be placed in the position of having to parse equivocal notices given by the landlord in renewal situations. Here, the tenant would reasonably have relied upon the latest expression of landlord's intent — i.e., the offer of renewal, and would have had no cause to prepare to vacate or to defend legal proceedings.

This constitutes the decision and order of the court.

McCooe, J. (dissenting). I respectfully dissent. Whether the renewal lease was inadvertently sent is a preliminary issue which should be decided before the substantive issue is reached. The affidavit of the President of the corporate managing agent for the subject premises states that it manages dozens of buildings with hundreds of apartments and that "the delivery of a lease renewal to Respondent was inadvertent and unintentional." The landlord did not sign or return the lease or seek any increased rent that would be due under the lease.

This common fact pattern in landlord and tenant proceedings where one party claims a notice was sent inadvertently, unless a blatant sham, creates a factual issue requiring resolution before the substantive issue is reached (See Coleman v Dabrowski, 163 Misc 2d 763 [App Term, 1st Dept 1994]). Intent is a factual issue (Jefpaul Garage Corp. v Presbyterian Hospital, 61 NY2d 442, 446 [1984]). There was no claim in the cases cited by the majority that the sending of the leases was inadvertent.

The Order should be affirmed on this ground.