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716 Realty, LLC v. Ilana Zadik

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 8, 2013

716 REALTY, LLC,
RESPONDENT,
v.
ILANA ZADIK,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), entered November 21, 2011.

716 Realty, LLC v Zadik

Decided on February 8, 2013

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order denied tenant's motion to be restored to possession and to vacate a default final judgment and dismiss the petition in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

Landlord commenced this summary proceeding alleging the nonpayment of three months' rent, which had been demanded orally. Tenant failed to appear on the return date, and a default final judgment was entered awarding possession to landlord. Upon receiving the marshal's notice, tenant moved to vacate the default final judgment, alleging non-service of a written rent demand, as required by the lease, and of the notice of petition and petition, and that, accordingly, the Civil Court had never acquired personal or subject matter jurisdiction. Landlord opposed the motion, offering proof of a certified mailing to tenant of a written rent demand. The Civil Court (Laurie Lynne Lau, J.) granted the motion to the extent of ordering a traverse hearing. Tenant failed to appear on the hearing date, and the Civil Court (John S. Lansden, J.) denied his motion. Tenant subsequently moved for the same relief. The Civil Court (John S. Lansden, J.) granted the motion to the extent of ordering a traverse hearing on condition that tenant pay landlord two months of the eight months' rent then due. Tenant did not pay the rent and failed to appear for the hearing. Tenant was evicted and subsequently moved for an order restoring her to possession, vacating the default final judgment and, upon such vacatur, dismissing the petition, on the ground that, because landlord had failed even to assert that it had properly served a written rent demand, the Civil Court had never acquired subject matter jurisdiction. The Civil Court denied the motion. A failure to comply with statutory or contractual requirements for service of a predicate notice may implicate a condition precedent to a summary proceeding but does not affect a court's subject matter jurisdiction (see CCA 110; 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 339 [1991]; D'Alesso v Haggins, 9 Misc 3d 138[A], 2005 NY Slip Op 51799[U] [App Term, 2d & 11th Jud Dists 2005]; Rivercross Tenants' Corp. v Tsao, 2 Misc 3d 137[A], 2004 NY Slip Op 50254[U] [App Term, 1st Dept 2004]; Seeram v Kearse, 2 Misc 3d 135[A], 2004 NY Slip Op 50213[U] [App Term, 2d & 11th Jud Dists 2004]). Similarly, irregularities in a petition with respect to allegations of service of a predicate notice, such as here, where the petition refers only to an oral demand, omitting reference to the written notice, also do not deprive a court of subject matter jurisdiction (Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [1983]; East Midtown Plaza Hous. Co. v Cannings, 14 Misc 3d 127[A], 2006 NY Slip Op 52481[U] [App Term, 1st Dept 2006]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 08, 2013

20130208

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