## Facts

- Landlord Cesare De Feo (doing business as Claremont Management Co.) commenced a summary eviction proceeding against tenants Anthony Merchant and Carol McDonald in the City Court of Mount Vernon.
- The landlord proceeded under Tenant Protection Regulations (TPR) § 52(f), which permits eviction where a tenant “has refused following notice pursuant to Section 45 to execute a renewal lease.”
- TPR § 45 required a landlord, not more than 90 and not less than 60 days before lease expiration, to notify the tenant by certified mail of the end of the lease term and to offer a renewal lease on the same conditions at the lawful regulated rent.
- Under TPR § 45, the tenant had 30 days from the date of mailing of the certified notice to accept the renewal offer.
- The landlord produced proof that he mailed the required renewal notice and offer by certified mail within the 60–90 day window.
- The tenants denied receiving the renewal notice or offer, whether by certified mail or otherwise.
- The tenants presented evidence that mail delivery to tenant mailboxes in their building was frequently unreliable.
- After learning that the landlord had started the eviction proceeding, the tenants promptly attempted to renew the lease, which the court considered consistent with non-receipt rather than an intentional decision to reject renewal.

## Issues

1. Whether, under TPR §§ 45 and 52(f), proof that a landlord mailed a renewal notice and offer by certified mail conclusively establishes tenant receipt and a “refusal” to renew.
2. Whether the presumption of receipt arising from certified mailing may be rebutted, and if so, whether the tenants’ evidence of non-receipt rebutted it here.

## Decision

- The court dismissed the eviction proceeding and denied the landlord possession.
- Proof of certified mailing created a presumption that the notice was received, but the presumption was not conclusive.
- The tenants’ showing of non-receipt, including evidence of repeated mail-delivery failures in the building and their prompt attempt to renew once they learned of the case, rebutted the presumption.
- Because “refusal” under TPR § 52(f) requires a knowing failure to execute a renewal lease after notice, the landlord did not prove the wrongful act necessary to evict where the court found the tenants did not receive the renewal offer.

## Legal Principles

- Proof of mailing, including certified mailing required by regulation, generally permits an inference of receipt, but it does not create an absolute rule that receipt occurred in every case.
- A tenant’s “refusal” to execute a renewal lease under TPR § 52(f) contemplates awareness of the renewal offer and a volitional decision not to renew; non-receipt is inconsistent with refusal.
- When a tenant offers credible evidence that the required renewal notice was not delivered or received, the presumption of receipt may be overcome, and the landlord must still prove the tenant’s wrongful conduct to obtain eviction.

## Conclusion

De Feo v. Merchant held that a landlord’s proof of certified mailing of a TPR § 45 renewal notice and offer raises only a rebuttable presumption of receipt, and that eviction under TPR § 52(f) for “refusal” to renew is improper when credible evidence shows the tenant did not receive the renewal offer and therefore did not knowingly refuse to execute a renewal lease.


De Feo v. Merchant, 115 Misc. 2d 286, 454 N.Y.S.2d 576 (1982)