Arep 19 Fifty–Fifth LLC v. McLaughlin, 570730/09.

• Decision Date: 09 August 2010
• Docket Number: No. 570730/09.,570730/09.
• Citation: 28 Misc.3d 135,957 N.Y.S.2d 634,2010 N.Y. Slip Op. 51406
• Parties: AREP 19 FIFTY–FIFTH LLC, Petitioner–Landlord–Appellant, v. Clarence McLAUGHLIN, Respondent–Tenant–Respondent, Jonathon Peirce, Respondent–Undertenant–Respondent, and “John/Jane Doe,” Respondents–Undertenants.
• Court: New York Supreme Court — Appellate Division

28 Misc.3d 135

957 N.Y.S.2d 634

2010 N.Y. Slip Op. 51406

AREP 19 FIFTY–FIFTH LLC, Petitioner–Landlord–Appellant,

v. Clarence McLAUGHLIN, Respondent–Tenant–Respondent,Jonathon Peirce, Respondent–Undertenant–Respondent,and“John/Jane Doe,” Respondents–Undertenants.

No. 570730/09.

Supreme Court, Appellate Term, New York, First Department.

Aug. 9, 2010.

OPINION TEXT STARTS HEREPetitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), dated May 29, 2009, which granted respondents' cross motion for summary judgment dismissing the petition in a holdover summary proceeding and denied, as moot, petitioner's motion for, among other things, discovery.

Present: McKEON, P.J., SHULMAN, HUNTER, JR., JJ.

PER CURIAM.

Order (Timmie Erin Elsner, J.), dated May 29, 2009, affirmed, with $10 costs.

We agree with Civil Court that the November 2006 notice of nonrenewal that served as the predicate for the prior nonprimary residence proceeding commenced in March 2007 by petitioner-landlord's predecessor in interest cannot serve as a valid predicate for the present nonprimary residence proceeding, which petitioner commenced in January 2009 ( see Kaycee W. 113th St. Corp. v. Diakoff, 160 A.D.2d 573 [1990] ). The prior proceeding was “marked off” the calendar in August 2007, 17 months prior to the commencement of this proceeding, and was never restored to the calendar. Since the prior proceeding has been effectively abandoned, the two-year-old nonrenewal notice used as the predicate for that proceeding is “stale, and ineffective as a proper predicate” for the subsequent proceeding ( Goldstein v. Simensky, NYLJ, Jan. 13, 1989, at 21, col 2 [App Term, 1st Dept]; cf. Arol Dev. Corp. v. Goodie Brand Packing Corp., 84 Misc.2d 493 [1975],affd52 A.D.2d 538 [1976],appeal dismissed39 N.Y.2d 1057 [1976] ). Accordingly, Civil Court correctly granted respondents' cross motion to dismiss the petition.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.