Recitation, as required by CPLR §2219(a), of the papers considered in reviewing the underlying motion: Papers Numbered

Plaintiff's motion is denied and defendant's motion to dismiss is granted. The complaint seeking ejectment alleges that defendants were non-rent regulated tenants residing in the premises located at 322 West 47th Street. The complaint further alleges that "in March 2013, all four tenants were offered leases" and that none of defendants signed their respective leases. The first cause of action seeking ejectment states that "Plaintiff terminated Defendants' tenancies by Notices of Termination dated January 26, 2014." Plaintiff alleges that defendants are unlawfully holding over in their apartments after termination of their tenancies.

Throughout the complaint, plaintiff acknowledges defendants as people who were at one time tenants. It is similarly undisputed that plaintiff, for many years, accepted rent from defendants. As these tenants were without a lease, they were month-to-month tenants.

NY Real Property Law 232-a provides:

No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy

Service of Process of a notice of petition in a summary proceeding is governed by the RPAPL. RPAPL 735 permits service via three methods: personal service; service upon someone [*2]of suitable age and discretion; or if upon reasonable application admittance cannot be obtained, by affixing a copy of the notice of petition and petition upon a conspicuous part of the property sought to be recovered, followed up with the required mailings (RPAPL 735). As a rule, at least two attempts at personal service, one during normal working hours and one attempt when a person working normal hours could reasonably be expected to be home, are required to satisfy the "reasonable application" standard (Martine Assoc. LLC v Minck, 5 Misc 3d 61, 62 [App Term 2d Dept 2004] see generally Eight Assoc. v Hynes, 102 AD2d 746 [1st Dept 1984], affd, 65 NY2d 739 [1985]). Here, the termination notice required by RPL 232-a, was served by Timothy R. Johnson. According to his affirmations of service on January 29, 2014, he attempted to serve defendants at their apartments and upon not getting a response, affixed the Notice of Termination and mailed it.

On their faces, the affirmations indicate that only one attempt was made, in contravention to the requirement to serve this predicate notice "in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law." The failure of a petitioner to comply with a statutory notice requirement, where applicable, represents the failure to comply with a condition precedent to suit (170 W. 85th St. Tenants Ass'n v Cruz, 173 AD2d 338 [1st Dept 1991]). As the predicate notice of termination was not properly served, this matter must be dismissed.

Plaintiff argues that, although defendants raised this defense in their answer, by not moving within 60 days, defendants have waived this defense pursuant to CPLR 3211(e). CPLR 3211(e) requires that "an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading." Plaintiff's argument is unavailing as defendants are not moving to dismiss based upon improper service of a "summons and complaint, summons with notice, or notice of petition and petition." Defendants' motion to dismiss is based upon improper service of a predicate notice as required by RPL 232-a and the failure of plaintiff to comply with this condition precedent to commencement of this action.

In 433 W. Assoc. v Murdock, (276 AD2d 360 [1st Dept 2000]) in discussing a landlord's failure to properly serve a predicate notice the Appellate Division stated that:

While the foregoing requirements were "essential elements" to the landlord's prima facie case (Jennie Realty Co. v Sandberg, 125 Misc 2d 28, 29 [App Term, 1st Dept]), and, accordingly, noncompliance therewith constituted defenses to the holdover petition (see, Homestead Equities v Washington, supra; cf., Chinatown Apts. v Chu Cho Lam, 51 NY2d 786), such defenses did not implicate the court's subject matter jurisdiction (see generally, Jackson v New York City Hous. Auth., 88 Misc 2d 121 [App Term, 1st Dept]; cf., 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338), and therefore could be waived (cf., Priel v Priel, NYLJ, Mar. 5, 1993, at 25, col 3 [App Term, 1st Dept]; Mehta v Karrow, NYLJ, Apr. 8, 1993, at 23, col 4 [App Term, 1st Dept]; 2785 Ocean Parkway Assoc. v Stern, NYLJ, Jan. 11, 1995, at 31, col 4 [Civ Ct, Kings County]).

Therefore, as this Court has previously held, since failure to serve a predicate notice is not [*3]a jurisdictional defect, it will treat defendant's "motion as [a] motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action on [the] grounds that service of inadequate predicate notice renders this proceeding fatally defective" (156-158 Second Ave., LLC v Delfino, 18 Misc 3d 1144(A), *5 [Civ Ct, NY County 2008] quoting 40 East 68th St. Co v. Habbas, 17 Misc 3d 1101[A], *1 [Civ Ct, NY County 2007]). Since the predicate notice was improperly served and there has been no waiver by plaintiff, the motion to dismiss is granted.

As the base complaint has been dismissed, the Court severs defendants' counterclaims seeking declarations regarding the rights to their apartments pursuant to CPLR 3019. Although the Court has discretion to continue to adjudicate the counterclaims (see Ballen v Aero Mayflower Tr. Co., Inc., 144 AD2d 407[2d Dept 1988]) the Court declines to exercise said discretion.

Accordingly, it is hereby

ORDERED that this matter is dismissed in its entirety and plaintiff's counterclaims are hereby severed. This constitutes the decision and order of the Court.