Mautner-Glick Corp. v. Glazer

Appellate Division of the Supreme Court of New York

Mautner-Glick Corp. v. Glazer

2017 NY Slip Op 1963, 148 A.D.3d 515, 48 N.Y.S.3d 587

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 2017

Docket3284 570981/15

StatusPublished

Cited by16 cases

This text of 2017 NY Slip Op 1963 (Mautner-Glick Corp. v. Glazer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mautner-Glick Corp. v. Glazer, 2017 NY Slip Op 1963, 148 A.D.3d 515, 48 N.Y.S.3d 587 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Appellate Term of the Supreme Court, First Department, entered on or about January 27, 2016, which affirmed an order of the Civil Court, New York County (Peter M. Wended, J.) (the Housing Court), entered on or about November 21, 2013, granting tenant-respondent’s motion for summary judgment dismissing the petition in a summary holdover proceeding, unanimously affirmed, without costs.

Petitioners’ threshold argument that tenant waived her right to contest service of the notice of nonrenewable (the Golub Notice) because she failed to raise it in her preanswer motion to dismiss is misplaced. 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]). Compliance with *516 a statutory notice requirement 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” (id.). Tenant timely raised the objection in her answer and again in her cross motion for summary judgment despite not having raised it in her pre-answer motion (id.; see CPLR 3211[e]).

Appellate Term also correctly affirmed the Housing Court’s determination that proper service of the Golub Notice was not established at the hearing. In primary residence cases, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (409-411 Sixth St. LLC v Mogi, 112 AD3d 558, 558 [2013] [internal quotation marks omitted]). This is particularly true where, as here, the findings of fact “rest in large measure on considerations relating to the credibility of witnesses” (id. [internal quotation marks omitted]). A fair interpretation of the evidence supported the Housing Court’s determination.

Concur—Tom, J.P., Richter, Manzanet-Daniels and Kahn, JJ.

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Order, Appellate Term of the Supreme Court, First Department, entered on or about January 27, 2016, which affirmed an order of the Civil Court, New York County (Peter M. Wended, J.) (the Housing Court), entered on or about November 21, 2013, granting tenant-respondent’s motion for summary judgment dismissing the petition in a summary holdover proceeding, unanimously affirmed, without costs.

Petitioners’ threshold argument that tenant waived her right to contest service of the notice of nonrenewable (the Golub Notice) because she failed to raise it in her preanswer motion to dismiss is misplaced. 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]). Compliance with *516 a statutory notice requirement 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” (id.). Tenant timely raised the objection in her answer and again in her cross motion for summary judgment despite not having raised it in her pre-answer motion (id.; see CPLR 3211[e]).

Appellate Term also correctly affirmed the Housing Court’s determination that proper service of the Golub Notice was not established at the hearing. In primary residence cases, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (409-411 Sixth St. LLC v Mogi, 112 AD3d 558, 558 [2013] [internal quotation marks omitted]). This is particularly true where, as here, the findings of fact “rest in large measure on considerations relating to the credibility of witnesses” (id. [internal quotation marks omitted]). A fair interpretation of the evidence supported the Housing Court’s determination.

Concur—Tom, J.P., Richter, Manzanet-Daniels and Kahn, JJ.

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Bluebook (online)

2017 NY Slip Op 1963, 148 A.D.3d 515, 48 N.Y.S.3d 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mautner-glick-corp-v-glazer-nyappdiv-2017.

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