Mautner-Glick Corp. v. Glazer , 148 A.D.3d 515 ( 2017 )

Mautner-Glick Corp. v Glazer (2017 NY Slip Op 01963)

Mautner-Glick Corp. v Glazer

2017 NY Slip Op 01963

Decided on March 16, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 16, 2017
Tom, J.P., Richter, Manzanet-Daniels, Kahn, JJ.

3284 570981/15

[*1]Mautner-Glick Corporation, et al., Petitioners-Appellants,

v

Haley Glazer, Respondent-Respondent.

The Price Law Firm LLC, New York (Joshua C. Price of counsel), for appellants.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.

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 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 preanswer 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]). 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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 16, 2017

CLERK