The premises at issue in this holdover proceeding is a rent-stabilized apartment. Petitioner, the landlord, asserts that he need not offer a renewal lease to respondents, the tenants, because he seeks to recover possession for his own use.

On or about July 9, 2014 petitioner served on respondents a predicate notice of termination and non-renewal that is commonly called a "Golub" notice. The parties' lease expired on October 31, 2014 and shortly thereafter petitioner began a holdover proceeding in this [*2]court under index number 98737/14 to recover possession of the premises. On the proceeding's November 17, 2014 return date the parties entered into a two-attorney stipulation that provided for the proceeding's discontinuance without prejudice. On November 24, 2014 and November 25, 2014 petitioner served the petition and notice of petition on which the instant proceeding is based.

Now respondents move to dismiss on the ground that there is not a legally sufficient predicate for the instant proceeding. Respondents argue that upon the discontinuance of the proceeding under index number 98737/14 the Golub notice became a nullity and as such is insufficient as a predicate to the instant proceeding. In support they cite Nicolaides v State of New York Division of Housing and Community Renewal, 231 AD2d 723 (2nd Dep't, 1996) where the court, writing broadly, held: "It is well settled that a notice of nonrenewal of a rent stabilized lease does not survive the dismissal of the first holdover action and cannot serve as the predicate for a second proceeding ...." (at 724). Respondents also cite Kaycee West 113th Street Corp. v Diakoff, 160 AD2d 573 (1st Dep't, 1990) in which the court held that the dismissal of a Civil Court summary proceeding premised on a 30-day notice of termination precluded the re-use of the predicate notice for a second proceeding. The court wrote: "Since the Civil Court action was dismissed, the 30-day notice upon which it was predicated cannot be revived to support a new action [citations omitted]." (At 573).

Petitioner counters that Bresciani v Corsino, 32 Misc 3d 463 (Civ Ct, Kings Co., 2011) is to the contrary. However, that decision does not persuade this court that the rulings in Nicolaides and Diakoff are not both binding and dispositive here. In addition, this court is not persuaded by the argument implicit in Corsino that the public interest would be better served if the lifespan of a predicate notice were not bright-line demarked as co-terminal with the proceeding predicated upon it, but instead were to be adjudicated on an ad hoc case-by-case basis that takes into account a variety of factors such as possible prejudice to the parties, the basis for the dismissal of the initial proceeding, and the number of times it had appeared on the court's calendar.

Petitioner also counters that 808 West End Avenue LLC v Pomeranz, 2006 NY Misc LEXIS 4139 (Civ Ct, NY Co., 2006) is to the contrary. This court disagrees. That holdover proceeding was predicated upon an allegation of nonprimary residence, not owner's own use. The public interest in reaching the merits in the former type of case is greater than in the latter. In addition, in Pomeranz the discontinuance of the first holdover proceeding and the commencement of the second occurred arguably on the same day. If so, the vitality of the predicate notice at issue therein may not been exhausted when the second proceeding was commenced; here, by contrast, the second proceeding was commenced days after, and not simultaneously with, the discontinuance of the first proceeding.

Accordingly, the court grants respondent's motion and provides that a judgment dismissing the proceeding shall be entered.

The court will mail copies of this decision and order to the parties.