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Chen v. Brito

Second holdover action cannot be brought under notice used in dismissed prior action.

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Judge Sikowitz

CHEN v. BRITO — In this “owner’s use” holdover proceeding, petitioner is seeking to gain possession of apartment 1R, at 740 53rd Street, Brooklyn, NY, a rent stabilized apartment. The petition, dated December 11, 2002, pleads in paragraph (10) that: “Pursuant to 2524.(a)(b)&(c3), and 2524.4(a) respondent was given 90-150 days notice terminating lease expiring on September 30, 2002.” Attached to the petition is a letter from petitioner’s counsel, dated June 26, 2002, serving as the required predicate notice of landlord’s intention to not renew the tenant’s lease. Respondent appeared by written answer interposing specific denials and an affirmative defense, including, inter alia, that petitioner failed to serve a new predicate notice after the discontinuance of a prior holdover proceeding, and that petitioner is barred from commencing a new holdover until he issues a renewal lease, and serves a Notice of Non-renewal prior to the expiration of that lease.

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