be dismissed for failure to state a claim under CPLR R 3211(a)(7). Chinatown Apts
Inc v Chu Cho Lam (51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 [1980]).
A termination notice used as the predicate for a holdover eviction proceeding may be
deemed stale and ineffective as to a subsequent proceeding where the first proceeding
was dismissed, abandoned or discontinued. See, e.g., Kaycee West 113th Street Corp
v Diakoff (160 AD2d 573, 554 NYS2d 216 [1st Dep't 1990])(reversing lower court
and dismissing declaratory judgment action against rent controlled tenant that relied on
the same 30-day termination notice that had been the basis for a prior holdover
proceeding that was dismissed); AREP 19 Fifty-Fith LLC v McLaughlin (28 Misc 3d
135[A], 957 NYS2d 634 [App Term 1st Dep't 2010])(prior proceeding deemed
abandoned as it had been "marked off" calendar 17 months prior to the commencement
of the current proceeding and never restored).
A predicate notice will not be deemed "stale" where the earlier proceeding had not
been terminated at the time of commencement of the current proceeding and where there
is no discernible prejudice to the tenant. 145 East 16th Street LLC v Spencer (36 Misc 3d 128[A],
954 NYS2d 760 [App Term 1st Dep't 2012]); 890 Park LLC v Rosenfeld (34 Misc 3d 130[A], 946
NYS2d 66 [App Term 1st Dep't 2011]); 213 E 26 LLC v Channing (41 Misc 3d
1211[A], 980 NYS2d 279 [Civ Ct NY Co 2013]).
As explained in Culhane v Patterson, supra, the legal doctrine of laches
underlies the "stale notice" doctrine: "A finding that a predicate notice has been rendered
stale is warranted where a landlord fails to act with reasonable diligence and the tenant is
prejudiced thereby." In Culhane, the court found that a predicate notice was not