Kaycee West 113th Street Corp. v. Diakoff

• Decision Date: 24 April 1990
• Parties: KAYCEE WEST 113TH STREET CORP., Plaintiff-Respondent, v. Harry DIAKOFF, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 216

554 N.Y.S.2d 216

160 A.D.2d 573

KAYCEE WEST 113TH STREET CORP., Plaintiff-Respondent, v. Harry DIAKOFF, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 24, 1990.

R.P. Schroeder, Patchogue, for plaintiff-respondent.

R.E. Levy, for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, ROSENBERGER, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.) entered April 21, 1989 which inter alia denied defendant's motion for summary judgment, unanimously reversed, with costs.

In this landlord-tenant non-primary residence action for a declaratory judgment, the IAS Court denied defendant's motion for summary judgment, finding that there were issues of fact concerning the substantive issue of whether the defendant occupied the apartment as his primary residence.

Since we find that the plaintiff-landlord's action is procedurally infirm, we reverse and dismiss.

Defendant has resided at apartment 4F at 627 West 113th Street for over 25 years. Although the landlord's papers do not so definitively state, the apartment is subject to Rent Control. The landlord commenced its attempt to evict petitioner by service of a 30-day notice on October 27, 1987, purportedly terminating a month to month tenancy. The notice contained the following statement: "The grounds for the termination of your tenancy are that you do not reside at the subject apartment as your primary residence, do not use the subject apartment for dwelling purposes and have illegally sublet the apartment." Premised on this notice, the landlord commenced a summary proceeding in the Civil Court on December 1, 1987. That action was eventually dismissed. Thereafter, the landlord commenced the instant action in Supreme Court seeking a declaratory judgment that the tenant is not using the apartment as his primary residence.

A jurisdictional prerequisite for the commencement of actions to evict rent controlled tenants by court process is the service of a 30 day notice of termination of the tenancy (9 NYCRR § 2204.3; First Sterling Corp. v. Zurkowski, 142 Misc.2d 978, 542 N.Y.S.2d 899). The notice served by the landlord here, prior to the commencement of the first Civil Court proceeding, does not satisfy this requirement.

That notice, served in the context of the prior Civil Court matter, cannot serve as the predicate for this later action. Since the Civil Court action was dismissed, the 30 day notice upon which it was predicated cannot be revived to support a new action (see, e.g., Weinberger v. Driscoll, 89 Misc.2d...