125 Misc. 2d 438 | N.Y. Sup. Ct. | 1984
OPINION OF THE COURT
Plaintiff, the owner of premises 420 East 55th Street, New York, New York, seeks to obtain a declaratory judgment, that the apartment occupied by defendant, is not her primary residence. Defendant argues that such a finding would deprive defendant of some of the rights afforded by the various tenant protection acts, including specifically the right to a renewal lease.
Defendant moves to dismiss the complaint pursuant to CPLR 3211 for failure to comply with the notice requirements of section 5 (subd a, par [11]) of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4, as amd) and section YY51-3.0 (subd a, par [1], cl [f]) of the Administrative Code of the City of New York prior to commencing the action.
While it is technically correct that the action is not one to recover possession it is apparent that this action is a step taken towards that end. Plaintiff seeks a declaration of legal rights, specifically, “that the subject apartment is exempt and/or excluded from * * * protection by the virtue of the fact that the defendant Grace Gawthrop Bush does not occupy or utilize the subject apartment as his primary residence”. Elsewhere, the complaint states that an expeditious adjudication of rights is needed “specifically as to whether or not the plaintiff is entitled to possession”. Although actual recovery of possession cannot be accomplished in this declaratory judgment action alone, a finding of nonprimary residence in this action would be res judicata in a subsequent proceeding in which possession could be recovered. To permit the within action to proceed despite the failure to provide the requisite 30-day notice under the Emergency Tenant Protection Act and Administrative Code (discussed above) would effectively allow plaintiff to circumvent the notice requirement yet conceivably achieve the same result — recovery of possession. Tenant is entitled to 30 days’ notice. To adhere to the letter of the law in this situation would violate the intention of the Legislature (Matter of Wilson v Board of Educ., 39 AD2d 965) to insure notice and an opportunity to cure.
The court is aware of and has carefully considered the decision of another Justice on a similar motion involving the same plaintiff and same legal issue (Sutton Assoc. v Edelman, March 22,1984, index No. 2917/84), but respectfully disagrees with the conclusion reached therein. This action, named as one for declaratory judgment, was not properly commenced due to the plaintiff landlord’s failure to provide the notice required by statute. The action must therefore be dismissed.
The motion is granted.