March 13, 2007, the petitioner withdrew the prior proceeding "without prejudice" and the written
withdrawal was "so ordered" by the court [Fitzpatrick, J.]. The respondent's position, that use of
the same predicate notice from the discontinued proceeding in this matter is a basis for dismissal,
is without merit based on the factual circumstances of this case. While it may be the general rule
that predicate notices from one holdover proceeding may not be used in a subsequent holdover
proceeding that is commenced after the termination, dismissal or discontinuance of the former
proceeding, it is the timing of the commencement of the second proceeding that becomes the
crucial factor to be considered. In Arol Development v.Goodie Brand Packing, 84 Misc
2d 493, 378 NYS2d 231, 233, the Appellate Term, First Department, stated:
In the fact pattern under review, that the first petition was discontinued by respondent
because defective did not require that a second notice to quit be served. The first proceeding was
attacked by appellant as a nullity; hence it may not now be asserted by appellant to bar the second
(citation omitted). Moreover the second proceeding was brought promptly and within a
reasonable time after the notice of termination was served. (Emphasis added)
In Arol the appellate court found it sufficient to use the same notice of termination if
the subsequent proceeding was brought promptly and within a reasonable time, without
specifically stating how much time is reasonable. Clearly, however, by commencing this
proceeding prior to discontinuing the first proceeding, the issue of "reasonable time" requires no
further inquiry. Citing Arol, id., the court in Atlantic Westerly Co. v.
Cohen, NYLJ, 10/5/05, p.18, col.1 held: