Opinion
August 24, 1989
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Section 2524.4, which became effective May 1, 1987, provides that an owner shall not be required to offer a renewal lease to a tenant where the housing accommodation is not occupied by the tenant as his or her primary residence; provided, however, that no action or proceeding shall be commenced seeking to recover possession on such grounds unless the owner shall have given 30 days' written notice to the tenant of his or her intention to commence such action or proceeding. The section 2524.4 notice may be combined with the written notice required to be given to the tenant pursuant to section 2524.2 (c) (2), requesting him or her, at least 120 and not more than 150 days prior to the expiration of the lease term, to vacate or surrender possession, the grounds for such request, the facts underlying the grounds, and the date when the tenant is required to surrender possession.
As the IAS court properly found, the letter dated July 6, 1987 fulfilled the requirements of section 2524.2 (c) (2), but did not include the 30-day notice required by section 2524.4 (c).
Plaintiff landlord seeks to avoid this latter requirement by styling its action as one merely seeking a declaration of rights and not one to recover possession of the premises. This rationale has been rejected by this court in cases involving both the 150-120-day and the 30-day notice requirements. (See, 615 Co. v Mikeska, 146 A.D.2d 452, lv granted 148 A.D.2d 1018; Park House Partners v. DeIrazabal, 140 A.D.2d 84; Metzendorf v. 130 W. 57 Co., 132 A.D.2d 262; Sutton Assocs. v. Bush, 125 Misc.2d 438, affd 108 A.D.2d 1106, lv denied 65 N.Y.2d 606.) Although technically a declaratory judgment action is not one to recover possession, and actual recovery of possession cannot be achieved in this action alone, it is apparent that it is a step taken towards that end, and to permit this action to proceed despite plaintiff's failure to provide the requisite 30-day notice would effectively allow it to circumvent the notice requirement yet conceivably achieve the same result — recovery of possession. (Sutton Assocs. v. Bush, supra, at 439.)
In so ruling, we do not express any opinion regarding the merits of the nonprimary residency issue. We also note that, since this is an action for a declaratory judgment, the proper remedy is to declare for the successful party, not to dismiss the complaint. (Cohen v. Employers Reinsurance Corp., 117 A.D.2d 435, 437.)
Concur — Kupferman, J.P., Carro, Asch, Wallach and Smith, JJ.