Petitioner commenced this summary holdover proceeding on or about October 21, 2013, seeking to recover possession of the Ground Floor apartment, a rent stabilized single room occupancy unit, located at 53 West 119th Street, New York, NY, on the ground that Petitioner seeks to occupy the entire building as his primary residence.

Respondent appeared by counsel, and interposed several defenses and made a demand for a jury trial. Respondent subsequently moved to dismiss this proceeding based in part on her contention that this Court does not have personal jurisdiction over her as service of the pleadings was improper, and because the notice of termination which served as a predicate to this proceeding is stale.

Specifically, Respondent contends that she was not served with the termination notice but instead found it on the ground outside the entrance of the subject building. Further, Respondent claims that she never received the petition and notice of petition. Respondent asserts that she did not receive a copy of the pleadings via either certified, registered or regular mail, and that service of the pleadings was made to an incorrect zip code which deprives the court of jurisdiction.

In opposition and in support of its cross-motion, Petitioner seeks an order consolidating this proceeding with two owner's use proceedings commenced by Petitioner against two other occupants of the building currently pending in Housing Court under Index nos. 84620/13 and 91302/12, based on his contention that the basis for his claims for possession is the same in all three proceedings, and consolidation will avoid inconsistent findings which will affect his ability to recover the subject building. Respondent opposes the request.

In addition, Petitioner contends that the Supreme Court action was not based on the grounds of owner's use, that no predicate notice was served in that action, and that in dismissing it the court mistakenly referred to the predicate notice which is the subject of this proceeding. Moreover, Petitioner contends that this termination notice is being utilized for the first time, that it is not stale since Petitioner could not commence this summary proceeding during the Golub period, and because the Supreme Court action between the parties was pending. Petitioner asserts that since service of the termination notice it has not accepted rent or use and occupancy from Respondent. Petitioner further contends that although Respondent is now challenging the adequacy of service of the pleadings in this case, her position here conflicts with her position in the Supreme Court action where she acknowledged having received the termination notice which she stated was attached to her door. And, Petitioner asserts that since service of the termination notice was made via personal delivery, no additional mailing was required. As to Respondent's challenge of the service of the petition and notice of petition, Petitioner contends that the affidavit of the process server is specific, and Respondent's allegations do not suffice to rebut it. [*2]

Petitioner also seeks an order amending the petition to reflect the correct zip code, which he asserts is not required for achieving service but recommended for service of notices from the marshal.

It has been held that service at the incorrect zip code, specifically under circumstances akin to this case, does not render service defective "where the correct street address and county were set forth" (Rochdale Holding Corp. v Neuendorf, 2 Misc 3d 133(A), 784 NYS2d 924 [App Term 2004]). In addition, Respondent's conflicting statements on the service of the notice of termination, and her allegations that she did not receive the notice of petition and petition do not controvert the prima facie evidence of service as stated in the affidavits of service so as to require a traverse hearing.

Moreover, an error in the pleadings regarding the description of the premises sought to be recovered is capable of amendment (see 191 Chrystie, LLC v Sonnier, 2008 NY Slip Op 52513 [U], 21 Misc 3d 144 [A]). To the extent that the pleadings incorrectly state the premises sought to be recovered and reflect an incorrect zip code, these deficiencies do not suffice to defeat this petition.

However, Respondent also argues that the Golub notice she received is stale and cannot serve as a predicate to this proceeding. According to Respondent, the subject predicate notice, which is dated February 14, 2012, also served as the predicate to an ejectment action commenced in Supreme Court in 2012 which was dismissed in August of 2013, but that since then she has not received any other notices from Petitioner putting her on notice that he sought to terminate her tenancy.

The termination notice in this proceeding is dated February 14, 2012. According to the affidavit of the process server it was served upon Respondent on February 16, 2012, and terminated her tenancy effective May 31, 2012. This proceeding was commenced on October 21, 2013, some 16 months later, and this termination notice cannot serve as a predicate to this proceeding because it is "stale, and ineffective as a proper predicate" (AREP 19 Fifty-Fifth LLC v McLaughlin, 2010 NY Slip Op 51406 [U], 28 Misc 3d 135 [A] [App Term, 1st Dept 2010]). The purpose of a predicate notice is "to communicate the landlord's intention" and "to provide a window period' snapshot of the landlord's reasons therefor" (Skyview Holdings, LLC v Cunningham, 2006 NY Slip Op 26411, 13 Misc 3d 102 [App Term, 1st Dept 2006]). This purpose was not served here. By Petitioner's own admission, the claims in the Supreme Court action were not related to the claims made herein, and its decision to await a determination in that action was a choice in litigation strategy which did not absolve Petitioner of the obligation to serve a timely notice. But, the dismissal of that action presented conflicting signals to Respondent as to Petitioner's intentions to recover the subject apartment.

Based on the foregoing, Respondent's motion seeking an order to dismiss this proceeding is granted, and the proceeding is dismissed without prejudice. Petitioner's cross-motion is denied as moot. [*3]

This constitutes the decision and order of the Court.

DATED: April 22, 2014

_____________________________

Cheryl J. Gonzales, J.H.C.