Are you looking to avoid painful nicks and bumps?* Then you better read the case of W 54-7 LLC v Schick.
Prior to Schick, landlords were able to argue that any defects in a predicate notice -- particularly as they related to service of that document -- were waived if not preserved in a tenant's responsive pleading or pre-answer motion to dismiss.
In this particular instance, the appellate court was of the opinion that the tenant's failure to preserve a defense relating to the legal sufficiency of a cure notice did not negate the landlord's eventual burden, at trial, to demonstrate that an appropriate predicate notice had issued in the holdover case. As the AT noted in its decision:
Tenant's pre-trial 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, LLC 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 ), and the burden remains with the landlord to prove that element of its case at trial (see generally Siegel, New York Practice, § 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, March 5, 1993, at 25, col 3 [App Term, lst 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 post-trial motion to "reargue" based upon the absence of a predicate notice.
The outcome of this case is at odds with the prior appellate precedent which holds that objections pertaining to the adequacy or sufficiency of a "condition precedent" are waivable.
How does one reconcile the outcome of this case? Beats us!
What does one come away with from the decision? To avoid getting marred, a landlord better get the elements of its case right, the first time.
For a copy of the Appellate Term's decision in W 54-7 LLC v Schick, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_26499.htm
*To be directed to (the other) Schick's website, please click on the following link: http://www.shaving.com/home.asp