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Top citers, strongest first. 12 distinct citers.
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discussed
Cited as authority (rule)
Simon Green Inc. v. Phillip
(2×)
"Compliance with statutory notice requirements represents a condition precedent to maintenance of a summary eviction proceeding . . . and the burden remains with the landlord to prove that element of its case at trial[.]" ( W54-7 LLC v Schick , 14 Misc 3d 49, 50 [App Term, 1st Dept 2007] [internal citations and quotation marks omitted]; see also Silver , supra , 73 AD3d at 163 [analyzing the word "shall" in various notice provisions prescribes in the RPL and RPAPL and finding that "shall" signals a mandatory pre-commencement act which "may be raised at any time during an action."]) As stated i…
discussed
Cited as authority (rule)
260 Riverside Corp. v. Sune
Code § 26-403(e)(10) (see Stribula, 107 Misc 2d at 117 ; Wertentiel, 132 Misc 2d at 217 ).5 Accordingly, as only a 30-day notice was served upon respondents, petitioner failed to comply with a necessary condition precedent to the maintenance of this summary holdover proceeding and the proceeding must be dismissed as a result (see Mautner-Glick Corp. v Glazer, 148 AD3d 515, 515-516 [1st Dept 2017]; W 54-7 LLC v Schick, 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).6 While the undertenants were not, strictly speaking, entitled to any predicate notice (see 170 West 85th St.
discussed
Cited as authority (rule)
Marine Terrace Preserv., L.P. v. Bauseman
Unlike an affirmative defense, which is generally waived when not raised in a responsive pleading, elements of a petitioner’s prima facie case remain a part of the initial burden of proof at trial, even where not challenged or raised as a defense in an answer or dipositive motion (see W54-7 LLC v. Schick, 14 Misc.3d 49, 50 [App Term 1st Dept 2006]; see also 1646 Union v Simpson, 62 Misc 3d 142 [App Term, 2d, 11th &13th Jud Dists, 2d Dept 2019] [relief in a summary proceeding is only available where the petitioner has complied with all the necessary 7 7 of 10 [* 7] FILED: QUEENS CIVIL COURT -…
discussed
Cited as authority (rule)
47-05 Ctr. SPE L.L.C. v. Hack
While proof of service of a facially sufficient notice was part of Petitioner's prima facie case ( see 1646 Union v Simpson , 62 Misc 3d 142 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2019]; Mautner-Glick Corp. v. Glazer , 148 AD3d 515 , [*4]516 [1st Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]), in the absence of a credible challenge to service in a responsive pleading or at trial, Petitioner was entitled to rely on its facially sufficient affidavit of service as prima facie proof of service ( see George Douleveris & Son, Inc. v P.J. 37 Food Corp. , 39 Misc …
discussed
Cited as authority (rule)
Chun Lin v. Lu Mei Chen
Proof of service of a legally sufficient predicate notice is a statutory condition precedent in a summary proceeding and is part of a landlord's prima facie case ( 1646 Union v Simpson , 62 Misc 3d 142 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2019]; Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [1st Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).
discussed
Cited as authority (rule)
Chun Lin v. Lu Mei Chen
Proof of service of a legally sufficient predicate notice is a statutory condition precedent in a summary proceeding and is part of a landlord's prima facie case ( 1646 Union v Simpson , 62 Misc 3d 142 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2019]; Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [1st Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).
discussed
Cited as authority (rule)
Chun Lin v. Lu Mei Chen
Proof of service of a legally sufficient predicate notice is a statutory condition precedent in a summary proceeding and is part of a landlord's prima facie case ( 1646 Union v Simpson , 62 Misc 3d 142 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2019]; Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [1st Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).
discussed
Cited as authority (rule)
Cedar Manor Mut. Hous. Corp v. Taylor
(2×)
It will remain Petitioner's burden to prove every element of its prima facie case at trial, including service of a proper predicate rent demand ( see Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [2d Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term 1st Dept 2006] Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [2d Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term 1st Dept 2006]).
discussed
Cited as authority (rule)
Cedar Manor Mut. Hous. Corp v. Taylor
(2×)
It will remain Petitioner's burden to prove every element of its prima facie case at trial, including service of a proper predicate rent demand ( see Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [2d Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term 1st Dept 2006] Mautner-Glick Corp. v. Glazer , 148 AD3d 515, 516 [2d Dept 2017]; W54-7 LLC v. Schick , 14 Misc 3d 49, 50 [App Term 1st Dept 2006]).
discussed
Cited as authority (rule)
Rahman v. Lewis
The petitioner also cites W 54-7 LLC v Schick, 14 Misc 3d 49, 50 [App Term 2006] for the proposition that where a tenant appears by legal counsel and fails to raise specific defects about a predicate notice before the commencement of trial, the court cannot consider those alleged defects.
discussed
Cited as authority (rule)
Mautner-Glick Corp. v. Glazer
Tenant’s defense that she was not properly served with the Golub Notice was not a defense based on lack of personal jurisdiction, but on landlords’ failure to comply with a condition precedent to suit (W54-7 LLC v Schick, 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).
discussed
Cited as authority (rule)
Bank of America, N.A. v. Owens
Bank of Chicago v Silver, 73 AD3d 162, 165-170 [2d Dept 2010]; W54-7 LLC v Schick, 14 Misc 3d 49, 50 [App Term, 1st Dept 2006].) To place the initial burden of producing evidence of bona fide tenancy status on the tenant would be to turn the PTFA’s goal of protecting tenants in foreclosed properties on its head.
Retrieving the full opinion text from the archive…
W54-7 LLC
v.
Walter Schick
v.
Walter Schick
Appellate Terms of the Supreme Court of New York.
Dec 14, 2006.
14 Misc. 3d 49
APPEARANCES OF COUNSEL, Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers (Lawrence Schiro of counsel), for appellant. Sperber Denenberg & Kahan, P.C., New York City (Jacqueline Handel-Harbour and Steven B. Sperber of counsel), for Walter Schick, respondent.
Cited by 13 opinions | Published
OPINION OF THE COURT
Per Curiam.Order, entered June 30, 2005, affirmed, with $10 costs.
Tenant’s pretrial motion to dismiss the holdover petition was properly granted, there being no serious dispute that landlord’s service by mail of the 10-day notice to cure was untimely under the rule enunciated in Matter of ATM One v Landaverde (2 NY3d 472 [2004]). Compliance with statutory notice requirements represents a condition precedent to maintenance of a summary eviction proceeding (see 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 339 [1991]), and the burden remains with the landlord to prove that element of its case at trial (see generally Siegel, NY Prac § 215, at 353 [4th ed]). Thus, the tenant’s failure to raise the notice issue in his initial dismissal motion or to plead it with specificity in his answer did not serve to relieve landlord of its trial burden to establish compliance with the Landaverde rule — a burden which, as indicated, landlord could not meet were this case to proceed to trial. Landlord’s reliance on Priel v Priel (NYLJ, Mar. 5, 1993, at 25, col 3 [App Term, 1st Dept]) for the proposition that tenant waived the right to object to the untimely service of the cure notice is misplaced since that case was fully tried and a possessory judgment was issued before tenant sought to dismiss the petition via a posttrial motion to “reargue” based upon the absence of a predicate notice.
McCooe, J.P., Davis and Gangel-Jacob, JJ, concur.