Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s motionPapers NumberedNotice of Motion, Exhibits A-E 1Affirmation in Opposition 2Affirmation in Reply 3DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:Petitioner commenced this holdover proceeding pursuant to 9 NYCRR §2524.4 seeking to recover possession of the rent-stabilized apartment located at 1834 Caton Avenue, Apartment 1M, Brooklyn, New York 11226. Petitioner commenced a previous holdover for the same premises under L&T index number 56407/18. The prior holdover was dismissed by order dated August 27, 2018 for failure to name a known party, Vivian Edwards, in violation of CPLR §1024. Petitioner then commenced the instant proceeding using the same predicate notice of non-renewal, dated September 15, 2017, as used in L&T index number 56407/18. The predicate notice of non-renewal lists “ICL” as tenant, and “John Doe” and “Jane Doe” as subtenants. The notice does not name a Vivian Edwards. All three parties in this matter are represented by counsel.Respondent Edwards subsequently filed the instant motion to dismiss pursuant to CPLR §3211 (a)(7) for failure to state a cause of action alleging the predicate notice is stale. In support, respondent annexes a copy of the August 27, 2018 decision in L&T index number 56407/18, a copy of the notice of petition and petition for the instant proceeding, a copy of the notice of intent of non-renewal dated September 15, 2017, a stipulation for a briefing schedule, and respondent’s answer. The notice of petition and petition for the instant proceeding is dated August 31, 2018, and was filed with and stamped by the court on September 7, 2018. Respondent argues that petitioner commenced this holdover eleven days after the prior holdover was dismissed, requiring a new notice of non-renewal. Respondent concedes that in some cases a predicate notice may survive a dismissal or discontinuance but argues there is a distinction between cases that were dismissed by the court and cases that are discontinued by the parties. Respondent also argues that in cases where a predicate notice survives dismissal or discontinuance, the subsequent case has been filed before the prior case is dismissed or discontinued, or within one or two days after the dismissal or discontinuance.Petitioner opposes respondent’s motion arguing that the notice of petition and petition is dated August 31, 2018, only four days after the prior holdover was dismissed, and that the predicate notice of intent of non-renewal is not stale. Petitioner argues that respondent lacks standing to challenge the notice of non-renewal, claiming respondent is an occupant with no independent possessory interest in the subject premises and that the tenant of record for the subject premises, ICL, has not made an appearance in this case. Petitioner further argues that the instant proceeding is in the same forum as the previous holdover, and thus the notice of nonrenewal can survive the dismissal of the initial proceeding. Petitioner claims respondent is not prejudiced by the instant proceeding because the prior case was dismissed on jurisdictional grounds and considered a “nullity,” as if it never existed.In reply, respondent states she is not challenging service of the notice of non-renewal and is arguing that the notice itself is stale. Respondent states that courts have declined to allow a predicate notice to serve as a basis for a second proceeding in the same forum, and that the “nullity” argument is inapplicable because respondent never denied the existence of the prior holdover.A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. CPLR §3211(a)(7). On a motion pursuant to CPLR §3211(a)(7), “the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” Siracusa v. Sager, 105 A.D.3d 937, 938, 963 N.Y.S.2d 364 (2013). Courts may take judicial notice of its own records. See Mebert v. Mebert, 111 Misc. 2d 500, 502, 444 N.Y.S.2d 834 (Fam. Ct. 1981).A holdover proceeding is commenced by the filing of a petition and notice of petition. RPAPL §731(1); see also 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc. 3d 21, 24, 21 N.Y.S.3d 810, 812 (N.Y. App. Term. 2015). Where there is a question regarding commencement of a summary proceeding and the question “involves the acquisition of jurisdiction, ‘commencement’ must continue to be defined in terms of service of the petition and notice of the petition, not by reference of the filing date” 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc. 3d 21, 24-25, 21 N.Y.S.3d 810, 812-13 (N.Y. App. Term. 2015).In a holdover proceeding pursuant to 9 NYCRR §2524.4, petitioner is required to give a notice of its intention of non-renewal “at least 90 and not more than 150 days prior to the expiration of the lease term,” and 30 days notice of its intention to commence a proceeding. See Golub v. Frank, 65 N.Y.2d 900 (1985). Courts have held that occupants have standing to assert defenses to proceedings, at least to the extent of demonstrating the statutory prerequisites to the proceeding have not been satisfied. Rochdale Village, Inc. v. Goode, 16 Misc. 3d 49, 52, 842 N.Y.S.2d 142 (App. Term 2007); see also RPAPL §743; 609 W. 151st St., LLC v. Francisco, NYLJ, Sept. 30, 1997, at 25, col 2 (App Term, 1st Dept) (sister of departed tenant of record of rent-stabilized apartment who had a potentially meritorious succession claim was permitted to join in a nonpayment proceeding). It is well settled that a notice of nonrenewal of a rent stabilized lease does not survive the dismissal of the first holdover action and cannot serve as the predicate for a second proceeding in a new forum. Nicolaides v. State of New York Division of Housing & Community Renewal, 231 A.D.2d 723, 724, 647 N.Y.S.2d 866 (1996); see generally, Kaycee W. 113th St. Corp. v. Diakoff, 160 AD2d 573; Cacaj v. Levine, NYLJ, July 3, 1991, at 25, col 4; Walsam Fifth Ave. Dev. Co. v. Lions Gate Capital Corp., 163 Misc 2d 1071; Weinberger v. Driscoll, 89 Misc 2d 675; Haberman v. Wager, 73 Misc 2d 732).In the instant proceeding, petitioner seeks to use a predicate notice from a previously dismissed proceeding. The prior proceeding was dismissed by court order and not discontinued on consent by the parties. Service of the notice of petition and petition for the instant proceeding was completed on September 18, 2018, indicating the instant proceeding was commenced twenty-two days after the prior case was dismissed. Even in the light most favorable to petitioner, the instant proceeding was commenced on the September 7, 2018 filing date, eleven days after the dismissal of the prior proceeding. While petitioner argues that respondent ICL has never appeared, respondent ICL is represented by counsel, who filed a notice of appearance. The November 14, 2018 stipulation adjourning the instant proceeding for motion practice was signed by the three attorneys, including ICL’s counsel. Based on the August 27, 2018 decision, respondent has a colorable claim that she has rights to the subject premises as evidenced by the DHCR registration records listing respondent Edwards as tenant and copies of rent-stabilized renewal leases listing respondent Edwards as tenant. The prior holdover was dismissed for failure to name respondent Edwards as a known occupant, and the predicate notice of non-renewal for both the prior holdover and the instant holdover fail to name respondent Edwards.Based on the foregoing, respondent’s motion is granted and the instant holdover proceeding is dismissed as the predicate notice from the prior holdover cannot serve as a basis for this new proceeding.This constitutes the Decision and Order of the Court.SO-ORDEREDDated: April 26, 2019
