Landlord's Reliance on Termination Notice in Second Eviction Case Was Valid

Landlord sued to evict tenant after serving a 90-day termination notice advising tenant this his lease wouldn't be renewed. Tenant asked the court to dismiss the case, claiming that the termination notice was stale because landlord had relied on that notice in a prior holdover proceeding dismissed by the court. The termination notice advised tenant that the tenancy termination date was Nov. 30, 2022. The court had dismissed landlord's prior holdover as premature because landlord commenced that case on Nov. 9, 2022, before the termination date.

The court ruled against tenant. While the general rule is that a predicate notice dies when a proceeding ends and may not be used as a predicate notice in any subsequent proceeding, there are exceptions to that rule. In this case, landlord promptly refiled its eviction petition two weeks after the first case was dismissed. The case was placed on the court calendar in April 2023 solely due to court calendar congestion. And the grounds for the first court's dismissal was premature filing. There was no intent by landlord to abandon the proceeding. The 90-day termination notice was a valid predicate notice and tenant showed no prejudice by the relatively short delay in commencement of the second proceeding. The court found that the termination notice was not stale and was a valid predicate notice for the new proceeding.

Record v. Marciano: Index No. LT-3631-2022/BR, 2023 NY Slip Op 50530(U), 79 Misc.3d 1204(A)(Dist. Ct. Suffolk Co.; 5/24/23; Matthews, J)