Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated August 12, 2010, which denied its motion, inter alia, for leave to conduct disclosure and to dismiss tenant's first and second affirmative defenses and, upon searching the record, dismissed the petition in a holdover summary proceeding.
Second 82nd Corp. v Veiders
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Decided on December 22, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
Order (Sheldon J. Halprin, J.), dated August 12, 2010, reversed, with $10 costs, petition reinstated, landlord's motion to dismiss tenant's first and second affirmative defenses granted, and matter remanded to Civil Court for further proceedings.
Tenant's affirmative defense of lack of jurisdiction, premised upon claimed inadequacies in the underlying notice of non-renewal, should have been dismissed on landlord's motion. The non-renewal notice alleged, inter alia, that tenant resides at a specified street address in Clarence, New York, with use therein of an identified "residential telephone number," and that landlord's employees have observed tenant at the subject Fifth Avenue apartment building only "once a month for less than a week each time." The notice thus set forth case-specific allegations tending to support landlord's nonprimary residence claim, and was sufficient to satisfy the specificity requirements of Rent Stabilization Code (9 NYCRR) § 2524.2(b) and governing precedent (see Berkeley Assoc. Co. v Camlakides, 173 AD2d 193 , affd 78 NY2d 1098 ; see also Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 , lv dismissed in part and denied in part 90 NY2d 829 ). That the notice meaningfully apprised tenant of the factual underpinnings of the landlord's nonprimary residence claim was confirmed by tenant's own moving papers, which included a detailed affidavit addressing the merits of the litigation and, further, requesting that the court search the record and grant tenant summary dismissal of the holdover petition. We find no jurisdictional deficiency in the absence from the non-renewal notice of specific allegations regarding the earlier, 2007 nonprimary residence holdover proceeding between the parties or the terms of the negotiated settlement of that case.
Similarly lacking in merit is tenant's affirmative defense of res judicata. The stipulated discontinuance of the prior nonprimary residence proceeding should not be accorded preclusive effect herein, in view of the material change in circumstances that undisputedly occurred in the intervening period between the conclusion of the prior case and commencement of this one (see Manitou Sand & Gravel Co. v Town of Ogden, 55 NY2d 790 ; Khaner v Gavin, 30 Misc 3d 1 ).
In reinstating the petition, we do not pass upon landlord's application for discovery and use and occupancy, issues not reached below. Our disposition is without prejudice to landlord's right to renew its application for such relief in Civil Court.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December ...