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213 E 26 LLC v. Walter Channing 213 East 26th Street

Civil Court of the City of New York, New York County

October 10, 2013

213 E 26 LLC, Petitioner-Landlord
v.
Walter Channing 213 East 26th Street, Rear Building NEW YORK, NY 10010, Respondent-Tenant MOLLY SEAGRAVE CHANNING, ISABELLA CHANNING, FRANCES A CHANNING, DIEGO ARQUETA, "JOHN DOE" and "JANE DOE"

Unpublished Opinion

ROSE & ROSE Attorneys for Petitioner By: David P. Haberman, Esq.

ROZENHOLC & ASSOCIATES Attorneys for Respondent By: Michael B. Terk, Esq.

Sabrina B. Kraus, J.

The underlying holdover proceeding was commenced by 213 E 26 LLC (Petitioner) against WALTER CHANNING (Respondent) the rent stabilized tenant of record, based on allegation that Respondent has failed to maintain 213 East 26th Street, Rear Building

NEW YORK, NY 10010 (Subject Premises) as his primary residence.

On September 26, 2013 the court heard limited argument and reserved decision on the motion.

PROCEDURAL HISTORY

Petitioner issued a notice of non-renewal dated December 21, 2012 (Notice). This proceeding is the third consecutive holdover proceeding by Petitioner using said Notice as a predicate. The first proceeding under Index Number 62459/2013 was initially returnable in Part D on April 24, 2013, and on said date it was discontinued without prejudice by Petitioner. Respondents never appeared in said proceeding and no affidavit of service for the notice of petition and petition in said proceeding appears to have been filed.

Prior to the discontinuance of the first proceeding, Respondent commenced a second proceeding under index number 62898/2013. Proceeding Two was initially returnable on April 26, 2013 in Part G. The affidavits of service for the petition and notice of petition in Proceeding Two were filed with the court on April 22, 2013, and that is deemed the date of commencement of said proceeding.

On June 11, 2013 Respondents moved for dismissal in Proceeding Two, and Petitioner made an oral application to discontinue without prejudice. Petitioner's application to discontinue without prejudice was granted by the court (Wendt, J.) pursuant to a written decision and order issued June 11, 2013.

This proceeding was commenced on June 6, 2013, the date the affidavit of service was filed for the notice of petition and petition.

THE MOTION

A notice of non-renewal used as a predicate in a prior proceeding may be reused as a predicate in a subsequent proceeding, where the subsequent proceeding was commenced prior to the discontinuance of the prior proceeding, and where the tenant has been caused no discernible prejudice [ 145 East 16th Street LLC v Spencer36 ...


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