Opinion
2003-427 K C.
Decided March 26, 2004.
Appeal by tenant Suzette Orr from an order of the Civil Court, Kings County (B. Scheckowitz, J.), dated February 28, 2003, denying her motion to set aside a stipulation and the final judgment entered pursuant thereto, and to dismiss the petition.
Order unanimously modified by providing that tenant's motion is granted only to the extent of vacating the stipulation and final judgment, and matter remanded to the court below for all further proceedings; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this nonpayment proceeding, tenant moved to set aside a stipulation and final judgment on the ground that landlords' service of the statutory three-day rent notice instead of the five-day written notice required by the lease for a default in rent ( see generally Hendrickson v. Lexington Oil Co., 41 AD2d 672; Shaw v. Hunter, NYLJ, Dec. 27, 1990 [App Term, 2d 11th Jud Dists]) deprived the court of subject matter jurisdiction (citing Landsman v. Lambert, NYLJ, Jan. 7, 1994 [Civ Ct, Bronx County]; B C Realty Co. v. Worona, NYLJ, Dec. 15, 1989 [Civ Ct, Bronx County]). In our view, the defect was not one of jurisdiction but merely involved an element of landlord's case and was waivable ( Wilson Han Assn. v. Arthur, NYLJ, July 6, 1999 [App Term, 2d 11th Jud Dists]; Parkchester Apts. Co. v. Walker, NYLJ, Sept. 16, 1996 [App Term, 1st Dept]; City of New York v. Holman, NYLJ, Sept. 20, 1991 [App Term, 1st Dept]; see 433 W. Assocs. v. Murdock, 276 AD2d 360; 170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338). Even if tenant's waiver of this defect in landlord's case was inadvertent, vacatur of the stipulation is not justified where, as here, tenant shows no prejudice arising from the defect ( John Washington Ltd. v. Galbraith, 171 Misc 2d 337; see Wyandanch Comm. Dev. Corp. v. Nesbitt, NYLJ, May 27, 2003 [App Term, 9th 10th Jud Dists]).
Tenant's inadvertent waiver of her warranty-of-habitability defense stands on a different footing ( see generally Park West Mgt. Corp. v. Mitchell, 47 NY2d 316, 327 [tenant's obligation to pay rent is dependent on landlord's maintenance of the premises in satisfactory condition]). Under the circumstances presented, including the fact that tenant raised the claim of violations in her answer and her showing, upon her motion to vacate the stipulation, that there were conditions in the apartment which may well have justified an abatement, the failure of the Housing Court to dispose of the issue in the stipulation provides a basis for its vacatur.