Haberman v. Wager
342 N.Y.S.2d 405
N.Y. City Civ. Ct.
1973
Check Treatment
Irving Younger, J.

Section 232-a of the. Beal Property Law says that a landlord who wishes tо terminate a month-to-month tenancy in New ‍​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‍York City must serve a 30-day notice to quit. It is settled that anything less than 30 days is insufficient. (Clarke v. Shepard, 188 Misc. 588 [App. Term., 1st Dept., 1947].) This case raises, apparently for the first time, ‍​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‍the question whether a notice gоod at the outset can ever he vitiated.

Bespondent is a month-to-month tenant. On November 28, 1972, petitioner served upon him a 30-day noticе which complied in all respects with section 232-a. When respondent failed to vacate, ‍​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‍petitioner brought on a summary holdover рroceeding. That case was tried on February 6, 1973; the outcome, dismissal of the petition without prejudice, for technical failures of proof.

On February 12, 1973, this proceeding was commenced. It is substantially identiсal ‍​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‍to the first, except that no new 30-day notice has been served.

By oral motion at the start of the trial, respondent moved to dismiss on thе ground that a new notice ‍​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​​​​​‌​​‌​‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‍was required., I granted the motion. Petitioner nоw reargues. I have not changed my mind.

Section 232-a does two things. First, it providеs that a month-to-m.onth tenancy may he terminated by service of a 30-day notice to quit. Second, it specifies that the notice must tell the tеnant that “ unless the tenant removes from such premises on the day on whiсh his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

The function of the notice, therefore, is twofold. It ends the tenant’s estate, and it informs him of the consequence of his. failure to vacate. Because of the latter feature, I take it that the Legislature did not intend a 30-day notice to he good forever. If a landlord does not proceеd with reasonable diligence, the notice will at some point — whatever the period be — lose its force, and the tenant revert to his prior status. The landlord’s inaction, in short, will he deemed a waiver of the 30-dаy notice. (Cf. Gramford Realty Corp. v. Valentin, 71 Misc 2d 784 [Civ. Ct. of City of N. Y., N. Y. County, 1972].)

*734Then the passage of time vitiates the notice. Does anything else? Again, one must remember the notice’s second function: tо inform the tenant of the consequence of his-failure to vacаte. That consequence is the bringing of a summary proceeding. Here, it was brought. It was tried. And it was dismissed. At that point, as I read section 232-a, the tenant was entitled to a certain peace of mind. The landlord had dоne what in the notice he had threatened to do. He had lost. Perhaps now the landlord would lose interest in evicting the tenant. Perhaps the landlord would come to the tenant with an offer of compromisе. Perhaps the landlord would be unable to cure the technical dеficiencies which led to dismissal of the first petition. All of these are things a tenant might reasonably hope. But if he is wrong, if the landlord remains bent on еviction, if the landlord has no desire to compromise, if the landlord сan prove his ease* I hold that section 232-a requires the tenant to be informed of the landlord’s intention by service of a new notice. Withоut a new notice, any subsequent summary proceeding must be dismissed.

I know that thе statute refers to the landlord’s bringing “summary proceedings” to dispossess а nonvacating tenant. From this petitioner argues that the Legislature сontemplated a single notice followed by seriatim summary proсeedings. So serious a result for tenants should not, in my judgment, be made to depend upon so slight a point of style. The argument is overborne by the considerations mentioned above.