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Scott E. Mollen

Landlord-Tenant—Rent Stabilization—Mitchell Lama Buy Out—Nine Plus Year “Dormant Litigation Resuscitated”

Plaintiff tenants had moved, inter alia, for an order “vacating” the defendants’ “demand to resume prosecution of the action and serve and file a note of issue or extending the time to file a note of issue,” or in the alternative, “extending the time to file a notice of issue.” A defendant argued that the plaintiffs had delayed prosecuting this matter for almost ten years. The pleadings had been filed in July 2007. Until May 2016, “no discovery was sought or exchanged, no RJI was filed nor were any court conferences sought.” In May 2016, the plaintiffs served defendants with a notice demanding entry onto the premises and soon thereafter, the moving defendant served a demand that plaintiffs resume prosecution. The defendant did not oppose the plaintiffs’ demand for entry onto the premises.

The plaintiffs responded in July by seeking an extension of time to file their note of issue. The court held that the plaintiff’s response constitutes “a sufficient and timely response to the demand.” The court further noted that “numerous cases establish that a motion seeking such an extension constitutes a sufficient, timely response to a 90-day notice” and that “from February 2017 to November 2017, the parties sought adjournments” based on “productive” and “ongoing” settlement negotiations. Accordingly, the court granted the plaintiff’s motion to the extent that their time to file a note of issue was extended pursuant to a stipulation dated January 29, 2018.

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