Towners v. Jahss, NYLJ, Oct. 10, 1985, p 11, col 2 [App Term, 1st Dept]; Warhit Real
Estate v. Krauss, 131 Misc 2d 429; Seagrave Establishment v. Goldberg, 130 Misc
2d 467) should not be followed."
The First Department, in Park House
Partners, Ltd. v. DeIrazabal, 140 AD2d 84, 532 [*10]NYS2d
249, 252 (1988), stated that 150/90 notice is required in ETPA nonprimary residence cases, citing
Crow:
"It may be noted that by our affirmance in Sutton supra, we expressly
recognized that an action for a declaratory adjudication of nonprimary residence was in effect an
'action or proceeding * * * to recover possession' thus calling into play the notice provisions of
section 5(a)(11) of the Emergency Tenant Protection Act of 1974 (L. 1974 ch. 576, § 4 as
amd.) (codified at Unconsolidated Laws § 8625[a][11], and the New York City
Administrative Code § YY51-3.0(a)(1)(f). Having so characterized nonprimary residence
declaratory judgment actions, there exists no principled basis for exempting them from the
nonrenewal notice provisions of the Rent Stabilization Code, which now go under the general
heading of 'termination notices' (see current Code § 2524.2). This is particularly true after
the Court of Appeals decision in Crow which held explicitly that the above cited
amendments to the Emergency Tenant Protection Act did not effect the repeal of the Code's
'window period' notice provisions. (Crow, supra at 797, 506 N.Y.S.2d 858, 498 N.E.2d
422)."
Based upon the foregoing, this court dismisses the instant
proceeding, due to Petitioner's failure to timely serve a 120/90 notice. The July 2 Notice was
superseded by the July 30 Notice, relied upon by Petitioner in the Petition. The July 30 Notice