not conferred any actionable repose upon respondent, Small v Fang (50 Misc 3d 1201[A], 28 NYS3d 650 [Civ Ct
NY Co 2015]), and dismissal is unwarranted.
Respondent's conclusory claim of prejudice [FN1]
is unavailing; the discontinuance of the prior proceeding, following the initial court
appearance in the current proceeding, did not present "conflicting signals to Respondent
as to Petitioner's intentions to recover the subject apartment." Briskin v Williams (43 Misc 3d
1219[A], 993 NYS2d 643 [Civ Ct NY Co 2014]). This is especially true here where
the attorney representing respondent in this proceeding represented her in the prior
proceeding, moved to dismiss that proceeding based on defective service of the notice of
petition and petition and signed off on the stipulation discontinuing the prior proceeding
without prejudice.
That this is a proceeding against an unregulated tenant based on a 90-day termination
notice under Sections 232-a and 226-c(2) of the New York State Real Property Law -
rather than one against a Rent Stabilized tenant based on a "Golub" notice — does
not warrant a different analysis or outcome and the cases respondent cites are not to the
contrary. As noted above, the seminal decision underlying the "stale notice" doctrine,
Haberman v Wager, supra, was a holdover based not on nonprimary residence
but rather, like this one, based on termination of a month-to-month tenancy under RPL
§ 232-a. True, New Prospect NY LLC v Garcia (2022 NYLJ LEXIS 2721,
4 [Civ Ct Bx Co 2022]), and Islam v Rodriguez (2022 NY Slip Op 34472[U][Civ
Ct Bx Co 2022]) were both decisions which resulted in dismissal of holdovers against
month-to-month tenants based on 90-day termination notices found to be "stale".