We then proceeded to note, citing Elwick Ltd. v. Howard ( 65 N.Y.2d 1006), Golub v. Frank ( 65 N.Y.2d 900) and Crow v. 83rd St. Assocs. ( 68 N.Y.2d 796), that the Court of Appeals therein has made clear the applicability of notice provisions to declaratory judgment actions. Thus, "[n]owhere in those decisions is there a scintilla of support for the proposition * * * that notwithstanding the owner's failure to give notice there still exists a residual entitlement to a declaration" (Park House Partners v. DeIrazabal, supra, at 88-89). There is simply no significant difference between the holding in the various foregoing legal authority and the present situation since 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 30-day statutory notice provision (see also, W.T. Assocs. v. Glauber, 153 A.D.2d 538). In any event, the issue of succession rights to a rent-controlled apartment is governed by 9 NYCRR 2204.6, which prohibits the removal of a person who is either the surviving spouse of the deceased tenant or some other member of the family who has been living with the tenant (Greenberg v. Coronet Props. Co., 167 A.D.2d 291). Defendant herein is the deceased's surviving spouse, a fact not only accepted without challenge by the landlord but even alleged by him in his complaint, and there is absolutely no question that she has the right to succeed to her late husband's rights as a rent-controlled tenant.
In any event, as asserted by Defendant, the courts have not countenanced a landlord seeking to avoid the requirements and protections of the Rent Stabilization Code, including the service of a notice to cure, by commencing a breach of lease action outside of an eviction proceeding or proceeding to recover possession, as findings therein may have a collateral effect on a subsequent proceeding. See, W.T. Assoc, v Glauber, 153 A.D.2d 538 (1st Dept 1989) (Action seeking declaration of rights dismissed since notice required under Rent Stabilization Code was not served, and declaratory action was a step to obtaining possession and would allow landlord to circumvent notice requirement); Kaycee W. 113thSt. Corp,vDiakoff, 160 A.D.2d 573, 574 (1st Dept 1990) (Action dismissed since notice of termination was a predicate' to the action, notwithstanding that a declaratory judgment, not an eviction, was sought); 200 E. 27th LLC v Schiffmiller-Nachshen, 8 Mise 3d 345, 348 (Sup Ct, NY County 2005)(Action to recover fair market value of rent-controlled premise dismissed as notice required by Rent Stabilization Code was not served). .
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.