Nevertheless, Ribner points out that the RTC is required by the rent control laws to give him thirty days' notice before bringing any proceeding to regain possession of the apartment. N Y City Admin. Code, 26-403(e)(2)(i)(10) reported following N Y Unconsol. Law § 8617 (McKinney 1987); Louis v. Barthelme, 179 A.D.2d 604, 579 N.Y.S.2d 656 (1st Dep't 1992). The record contains no indication that such a notice was ever served upon Ribner.

Respondent's father was a statutory tenant, and a right of succession broadly encompassed his family members, including his child (see, Matter of Duell v Condon, 84 N.Y.2d 773, 780). Petitioner failed to raise an issue disputing respondent's assertions that she was living with her mother when the statutory tenancy of her father ended in 1974 (cf., 911 Alwyn Owners Corp. v Rosenthal, 160 A.D.2d 321, 322). Petitioner offered nothing concrete or reliable in support of his case, and did not even attempt to deny that respondent resided in the apartment up to 1987. With family membership undisputed, the rules of succession applied, and petitioner's only remedy, if any, would have been on primary residence grounds; having failed to preserve such grounds by proper notice, he was not entitled to avoid summary judgment (see, Louis v Barthelme, 179 A.D.2d 604, 607). Concur — Sullivan, J.P., Ellerin, Rubin, Williams and Tom, JJ.

Although there said in the context of a declaratory judgment action, the same applies to this action for money damages where the relief sought is different, but the underlying basis for the relief, even though couched in terms of fraud, remains the same, i.e., the failure of the defendants to occupy an apartment as their primary residence. ( See also, W.T. Assoc. v. Glauber, 153 AD2d 538 [1st Dept 1989]; Louis v. Barthelme, 179 AD2d 604, 607 ["irrespective of the procedural guise of this matter, plaintiff is attempting to have the court determine that the subject apartment was not the tenant's primary residence without satisfying the requisite . . . statutory notice provision"].) Thus, the failure to serve a nonrenewal notice within the window period requires dismissal of the complaint.