I write in response to the article by Warren Estis and Jeffrey Turkel, “Courts Differ on Timing Issues in Owner-Occupancy Cases,” (NYLJ, July 7, page 5). I am co-counsel, along with Sam Himmelstein, on the cases Rudd v. Sharff and Rudd v. Knight, which were discussed in the article. In the Rudd cases, the owner claims that he seeks possession of the first two of 13 units, and that his intent is to serve notices upon the remaining tenants as their leases come up for renewal, and upon removing all of these tenants, to convert the entire 13-unit building to a one-family residence.
The tenants in Rudd did not claim that the owner lacked good faith; such a claim would be futile on a pre-answer motion to dismiss where the landlord is entitled to the benefit of every possible favorable inference. What the tenants argued, and what the court held, was that the notice of non-renewal, on its face, stated facts which indicated that the owner did not intend to occupy the units unless and until he recovered possession of all 13 units, and then performed the work required to convert the building to a one-family home, where he would then live. Thus, the notice stated facts indicating that the owner intended to warehouse these apartments for several years, and may not occupy the units at all.
