54 LLC v. SCHICK 06 061 (2006)

Order (Sheldon J. Halprin, J.), entered June 30, 2005, affirmed, with $10 costs.

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 N.Y.3d 472, 779 N.Y.S.2d 808, 812 N.E.2d 298 (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 A.D.2d 338, 339, 569 N.Y.S.2d 705 [1991] ), 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 (N.Y.L.J., March 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 post-trial motion to “reargue” based upon the absence of a predicate notice.

This constitutes the decision and order of the court.

PER CURIAM.