Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 12, 26-41.

This is a nonprimary residence holdover proceeding commenced by petitioner against David Lawrence and Anne Lawrence ("respondents" or "David" or "Anne") on the basis that they are not utilizing the apartment as their primary residence in violation of 29 RCNY 2-08.1. Petitioner alleges that the subject apartment is "not subject to the New York City Emergency Housing Rent Law, the Rent Stabilization Law of 1969 or the Emergency Tenant Protection Act of 1974. The premises [is] a covered unit in a building which is an interim multiple dwelling . . . pursuant to the Loft Board Regulations . . . ." (NYSCEF Doc No. 1, petition ¶¶ 9-10.) Petitioner, who bought the building in foreclosure, is not aware if respondents ever had a lease, but believes that any lease is expired, and that respondents "remain in possession as statutory month-to-month tenants." (Id. ¶ 3.)

Petitioner provided respondents with a "Ninety (90) Day Notice to Tenant of Termination of Tenancy," alleging that David and Anne own and reside at other residences. (Id. at 8-10.)^[FN1] [*2]Specifically, petitioner alleges that "[t]he Lawrences own a house at 5 Vincent Street, Binghamton, New York, and an additional residential property at 536 Farnham Road, Windsor, New York (emphasis added)." (Id. at 9, notice of termination.)

On February 28, 2023 at 6:04 p.m., the notice of nonrenewal was handed personally to Anne. (NYSCEF Doc No. 1 at 6, affidavit of service on David.) It was also mailed that same day to her "at the property sought to be recovered[.]" (Id.) David received the notice of nonrenewal by substitute service upon Anne, and by mailing to "the property sought to be recovered[,]" i.e., the subject rent stabilized apartment. (Id. at 1, affidavit of service on David.)

Subsequently, the notice of petition and petition were served by affix and mail service. (RPAPL 735 [a].) The notice of petition and petition were purportedly posted on the door to the apartment on July 20, 2023 at 10:25 a.m. and mailed to "David Lawrence, 5 Vincent Street, Binghamton, NY 13905 [and] Anne Lawrence, 536 Farnham Road, Windsor, NY 13865." (NYSCEF Doc No. 4 at 1, affidavit of service on David.) According to a plain reading of the process server's affidavit, neither David nor Anne received the mailings at both of their alleged alternative residences.

Petitioner has moved for discovery pursuant to CPLR 408 on the basis that "ample need" as defined by the decision in New York Univ. v Farkas, 121 Misc 2d 643 (Civ Ct, New York County 1983) has been demonstrated. (Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996] ["[T]he law recognizes a presumption in favor of discovery in summary proceedings commenced by the landlord on the basis of nonprimary residence (internal citations omitted.)"]) (NYSCEF Doc No. 12, notice of motion [sequence 1].)

Respondent has cross-moved to dismiss the proceeding on the basis of improper service of the notice of petition and petition due to petitioner's failure to serve both respondents with same at their alternate residences. (NYSCEF Doc No. 26, notice of cross-motion [sequence 2].) Petitioner opposes, advancing that it must be afforded every favorable interest on a motion to dismiss directed at the sufficiency of the pleadings. (NYSCEF Doc No. 38, petitioner's attorney's affirmation ¶ 17.) Petitioner argues that service of the notice of petition and petition were properly made at what respondents admit to being their residence, and by subsequent mailings to their upstate residences. (Id. at 10, n 6.)

The court will first address the jurisdictional issue.

The parties appear to agree that a 90-day notice of nonrenewal was required,^[FN2] and that petitioner was required to serve said notice pursuant to RPAPL 735. However, no specific method of service for a notice of termination on the basis of nonprimary residence is prescribed by 29 RCNY 2-08.1 (a) or under Article 7-c of the Multiple Dwelling Law. As a result, respondents' argument that service of the nonrenewal notice was defective because it was not mailed to the alleged alternate residences in misplaced. That petitioner opted to give respondents notice of [*3]nonrenewal in a manner similar to RPAPL 735 does not obligate petitioner to comply strictly with RPAPL 735. Thus, that branch of respondents' motion which prays for dismissal based on defective service of the notice of nonrenewal is denied.^[FN3]

Turning now to the service of the notice of petition and petition, without citing to any authority, petitioner advances that the plain language of the statute requires this court to rule that service by mailing to the "property sought to be recovered" is sufficient without mailing to other known residences. The court disagrees.

RPAPL 735 states in relevant part

"Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

(a) if a natural person, as follows: at the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information . . . (emphasis added)." (RPAPL 735 [a].)

Petitioner's argument — that no mailing to an alternate residence is required because respondents' claim to reside in the subject apartment — is specious. If that is the case, it begs the question: Why did petitioner attempt any mailings at all?^[FN4] Petitioner's argument would require that a person have only one residence; however, as explicated in 417 E. Realty Assocs. v Ryan, 110 Misc 2d 607 (Special Term, New York County 1981), a person can have multiple residences. Interpreting the plain language of the statute and the legislature's choice of the word "residence" [*4]rather than "domicile," the Ryan court found that the legislature, clearly knowledgeable of the distinction between the two terms, "obviously intended that potential litigants receive as much notice as possible of the commencement of a lawsuit." Especially where a landlord claims that a tenant resides elsewhere, mailing to the alleged alternate residences promotes this policy.

"The time has long passed from feudal days when a tenant-farmer resseant du fief. Today we are not obligated to dwell on our "lord's land" and not depart from it. We can move about freely; for good reason, for bad reason, or for no reason at all. We may even establish more than one place of residence; keeping, however, only one domicile." (Id. at 612.)

It is only in the context of Rent Stabilization Law and public policy informing same that a person must maintain an apartment as their "primary residence."^[FN5] Indeed, the gravamen of petitioner's cause of action is that respondents have other residences in other localities to which they have such strong ties that they no longer primarily reside in their New York City apartment. RPAPL 735 requires that if a landlord has written information that the property sought to be recovered is not the only residence of a tenant whom it seeks to evict, the notice must also be mailed to said residence(s). Here, ironically, petitioner need look no further than the written notice of termination that it provided to respondents.

Accordingly, it is

ORDERED that respondent's motion to dismiss is GRANTED, and the petition is dismissed without prejudice.

In light of this decision and order, the court does not reach petitioner's motion for discovery.

Respondent shall serve this decision upon petitioner with notice of entry.

This constitutes the decision and order of this court.