Recitation, as required by CPLR 2219(A), of the papers considered in the review of Respondent Ronald Griffin’s Motion to Dismiss:Papers/NumberedNotice of Motion with Supporting Affirmation, Affidavit & Exhibits A-D 1Affirmation in Opposition 2Reply Affirmation with Supporting Exhibits A-B 3
*1 Upon the foregoing papers, and for the reasons stated below, Respondent’s motion is decided as follows.PROCEDURAL HISTORY & FACTUAL BACKGROUNDThis is a holdover proceeding based upon Respondent-tenant Ronald Griffin’s alleged harboring of a dog in his Rent Stabilized apartment in violation of a lease provision prohibiting pets. Respondent moves to dismiss based on vitiation of the termination due to acceptance of rent during the window period. The procedural chronology, critical to the determination of Respondent’s motion, is as follows:A Ten (10) Day Notice to Cure, dated March 16, 2017, was served by first class and certified mail on March 21 and demands that Respondent permanently remove the dog by April 6.A Ten (10) Day Notice of Termination, dated April 21, 2017, was served by first class and certified mail on April 27, alleges failure to cure the lease violation and terminates the tenancy as of May 13, 2017.The Petition is dated June 23, 2017, was filed with the court on June 28 and was made returnable on July 12; the Notice of Petition and process server’s affidavit documenting substituted service on July 3 were filed with the court on July 6.The Petition alleges that the term of Respondents’ tenancy expired for the reasons set forth in the predicate notices, that Respondents continue in possession without Petitioner’s permission and that “No monies for rent and/or ‘use and occupancy’ have been received and/or accepted since the expiration of Respondent’s term.”Respondent Griffin1 appeared by counsel and served and filed an Answer on August 29, 2017 and an Amended Answer on September 27, 2017. The Amended Answer raises three defenses two affirmative defenses and four counterclaims. Respondent has now moved to dismiss based on his third defense: “Petitioner vitiated the Notice of Termination” by accepting rent payments during the period after the tenancy was terminated and before the commencement of this proceeding, often referred to as “the window period”2. Respondent points to the May 13, 2017 effective date of the Notice of Termination and attaches to the moving papers as
