Read upon the following papers numbered 1 to 3 read on this motion by petitioner to vacate the dismissal of the petition on March 22, 2023 and restore to the hearing calendar, Notice of Motion/Order to Show Cause and Supporting Papers 1 Notice of Cross Motion and Supporting Papers Answering Affidavits and supporting papers 2 Replying Affidavits and supporting papers 3 and after due deliberation it is hereby ORDERED, that respondents’ motion to dismiss is DENIED. Respondents move to dismiss, alleging that the predicate 90-day notice relied upon by petitioner in this proceeding was rendered stale by the court’s dismissal of a prior holdover proceeding. Petitioner served a 90-day notice to terminate on respondents on August 4, 2022. The tenancy terminate date specified in this notice was November 30, 2022. Thereafter, petitioner commenced a holdover proceeding on November 9, 2022. Respondents promptly moved to dismiss that proceeding on the ground that the holdover proceeding was commenced before November 30, 2022, the date on which the tenancy terminated according to the 90-day notice. By order dated December 16, 2022, this court dismissed the holdover proceeding commenced November 9, 2022 (LT-003025-22/BR), finding that it was prematurely commenced. Petitioner thereupon filed a new holdover petition, the subject proceeding, on December 30, 2022. Petitioner relies on the same 90-day notice that was the predicate notice for the prior proceeding which ended in dismissal. Respondents assert that under the facts of this case the 90-day notice was rendered stale by virtue of the court’s dismissal of the prior proceeding on December 16, 2022. Respondents argue that the general rule is that a predicate notice dies when the proceeding ends and may not be used as a predicate notice in any subsequent proceedings. Put another way, a “bright line” exists between one holdover proceeding and a subsequent proceeding requiring a new predicate notice in all cases without exception. See Matter of Nicolaides v. State of New York Div. Of Hous. & Community Renewal, 231 AD2d 723, 724 (2d Dept 1996). Respondents’ further argue that even if the court were to find that a determination of whether a predicate notice is vitiated by the dismissal or withdrawal of the first holdover proceeding is decided on a case by case basis, that the facts of this case support a finding that a new predicate notice was required for the second proceeding. Respondents point to the length of time from the dismissal of the first proceeding (December 16, 2022) and service of the petition in the second proceeding (March 23, 2023) as being excessive and that respondents were prejudiced because they had no reason to expect that a second proceeding would be commenced. In Culhane v. Patterson, 54 Misc 3d 10, 12-13 (App. Term 2016), the court found that the rule espoused in Matter of Nicolaides, id, was called into question by a then recent decision of the Appellate Division, Second Department in Matter of Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99, 104 (2d Dept 2015) wherein the court held that acceptance of unsolicited rent from a tenant after expiration of the lease did not render the landlord’s nonrenewal notice stale on the ground that the acceptance of rent did not “unmistakably manifest…[an] intent to relinquish the (landlord’s) right to pursue a…holdover claim.” id. The court in Culhane applied this reasoning to find that “a stipulated discontinuance without prejudice, of a prior holdover proceeding should similarly not render such a notice stale, where a new proceeding is immediately commenced.” id. In Center for Behavioral Health Services, 18 Misc 3d 111(A) (Civ.Ct.Kings Co.2008), the court carved out an exception to the “general rule” asserted by respondents: “While it may be the general rule that predicate notices from one holdover proceeding may not be used in a subsequent holdover proceeding that is commenced after the termination, dismissal or discontinuance of the former proceeding, it is the timing of the commencement of the second proceeding that becomes the crucial factor to be considered.” And in Bresciani v. Corsino, 32 Misc 3d 463, 467-468 (Civ. Ct. Kings Co. 2011), the court declined to adopt the “bright-line” rule as urged by respondents but instead opted to give “. . . consideration to the fact-specific circumstances that led to the dismissal of the first owner-use holdover proceeding and the commencement of the second identical proceeding using the same predicate notice…” id. In conclusion, the Bresciani court found “…that as a result of the basis for the dismissal of the first proceeding, the stipulation entered into between the parties, the timing of the commencement of the second proceeding, and the lack of prejudice to the respondents, dismissal of the instant proceeding is not warranted.” id. Here, respondents’ motion to dismiss the first proceeding was based on it being prematurely commenced prior to the date set for the termination of the tenancy. The court order granting this motion was issued on December 16, 2022. Petitioner promptly re-filed the petition two weeks later on December 30, 2022. Due solely to calendar congestion, the court set April 12, 2023 as the initial return date of the petition. Thus, the only delay occurred not as the result of any lack of diligence on the part of petitioner but because of the volume of cases filed that caused the court to delay in setting the initial hearing date. Moreover, the basis for the dismissal was the premature filing of the first petition. There was no intent to abandon this proceeding by the actions of the landlord. If anything, they acted too swiftly by filing the first petition before the termination of the tenancy on November 30, 2022. Had the first petition been filed initially on December 30, 2022, the predicate 90-day notice served on August 4, 2022 would unquestionably had been a valid predicate notice to such proceeding. Moreover, respondents have failed to demonstrate any prejudice by the relatively short delay in the commencement of the second proceeding. Nothing the landlord did or did not do is sufficient to support any finding of an intent to abandon their efforts to evict the respondents. There is not even any ambiguity as to the landlord’s intentions. Respondents were well-represented by counsel in the first proceeding and enjoy the same quality representation in the subject proceeding. That petitioner promptly commenced this second proceeding should have come as no surprise to the tenants or their counsel. Accordingly, due to the basis for the dismissal of the first proceeding and the prompt commencement of the second proceeding, as well as the manifest lack of any prejudice to the respondents, the court finds that the predicate 90-day notice served by petitioner on August 4, 2022 was not stale but was a valid predicate notice for the commencement of the currently pending proceeding. As a result, the respondents’ motion to dismiss is denied in all respects. This matter is set down for a hearing on June 21, 2023 at 2:00 p.m. Dated: May 24, 2023
