Courts have, until recently, applied a bright line rule that a predicate notice is no longer valid once a holdover proceeding ends, and may not be used again in a subsequent proceeding. Landlords were often forced to re-serve 30, 60 or even 90 day notices.

Our Landlord-Tenant practice team recently faced such a situation.

Anticipating the filing of a typical Holdover Petition, a 90 day termination notice was served on the tenant. (A 90 day notice is required because the tenant was in possession of the premises for more than two years.) However, because the tenant was creating a nuisance by maintaining unsanitary and emergency conditions, the landlord wished to file an Order to Show Cause in hopes of terminating the tenancy earlier, and did so before the Holdover Petition was filed. Upon the Court’s dismissal of the Order to Show Cause petition, the landlord immediately filed a Holdover Petition, and did so predicated on the original 90-day notice. The tenants tried to dismiss the Petition, alleging that the landlord cannot rely on that same 90-day predicate notice since it was already used to support the dismissed Order to Show Cause.

However, Judge Matthews held that a per se denial is not mandatory, and the fact-specific circumstances underlying this case warranted a finding in favor of the landlord.

The Judge declined to employ the “bright line” rule that a decision automatically vitiates a predicate notice. Citing Bresciani v. Corsino, 32 Misc. 3d 463 (Civ. Ct. Kings Co. 2011), the Court reasoned that the swift timing of the commencement of the second action and the lack of prejudice to the defendants did not warrant a dismissal of the proceeding.

If you are a landlord seeking guidance on any of your tenant issues, please contact our office.
Jennine Cullen, Esq: jennine@taylor-eldridge.com
Laura M. Endres, Esq.: laura@taylor-eldridge.com