AREP 19 Fifty-Fifth LLC v McLaughlin

[*1] AREP 19 Fifty-Fifth LLC v McLaughlin 2010 NY Slip Op 51406(U) [28 Misc 3d 135(A)] Decided on August 9, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570730/09.

AREP 19 Fifty-Fifth LLC, Petitioner-Landlord-Appellant,

against

Clarence McLaughlin, Respondent-Tenant-Respondent, Jonathon Peirce, Respondent-Undertenant-Respondent, -and- "John/Jane Doe," Respondents-Undertenants.

Petitioner-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.

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 AD2d 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], affd 52 AD2d 538 [1976], appeal dismissed 39 NY2d 1057 [1976]). Accordingly, Civil Court correctly granted respondents' cross motion to dismiss the petition.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 09, 2010