"stale" where petitioner commenced a new proceeding within two days of discontinuance
of the first proceeding and respondent showed no prejudice. Culhane cites to Raffone v Schreiber (18 Misc
3d 925, 850 NYS2d 851 [Civ Ct NY Co 2008]), a case in which there had been no
prior proceeding based on the same predicate notice but instead a 16-month delay had
transpired that was "the direct result of the petitioner's own inaction". Raffone
reviews the history of the "stale notice" doctrine, dating back to the Honorable Irving
Younger's decision in Haberman v Wager (73 Misc 2d 732, 342 NYS2d 405 [Civ
Ct NY Co 1973]), a holdover against a month-to-month tenant based on a termination
notice authorized by RPL § 232-a, which held that, "If a landlord does not proceed
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 be deemed a waiver of the 30-day notice."
Here, petitioner commenced two holdover proceedings based on the same 90-day
termination notice authorized by RPL § 232-a and the first one was still pending
when this second one was commenced. The prior case was neither abandoned nor
dismissed but rather discontinued by a two-attorney stipulation without prejudice after
the first appearance in this proceeding. There has been no "inaction" by petitioner, who
did not delay in commencing the second proceeding; in fact, the two proceedings based
on the same termination notice overlapped with each other. The length of time that has
elapsed since the predicate notice was served is irrelevant here where the first proceeding
was still actively being litigated on the day this second [*3]proceeding was first conferenced. Petitioner's actions have