Those of you who have read our book, or attended one of our continuing legal education seminars, are aware of our take on the Court of Appeals's decision in Matter of ATM One v. Landaverde and its expanding application to different kinds of predicate notices used in a summary proceeding.
For those of you who haven't seen our "dog-and-pony show," here's a quick rundown.
In 2004, the New York State Court of Appeals addressed a dispute involving a rent-stabilized tenant subject to the Emergency Tenant Protection Regulations (or "ETPR"). According to that particular law, before a landlord may bring an eviction proceeding, a tenant must be given a 10-day period within which to cure a wrongful act or omission. In this particular instance, Ms. Landaverde was given only nine days to address purported "overcrowding" in her one-bedroom apartment in Freeport, New York.
When the landlord brought its holdover proceeding, the tenant moved to dismiss the case on the grounds that she had not been given the required 10-day cure period. The local District Court agreed, as did the Appellate Term and Appellate Division. The question considered by the state's highest court was whether service of such a notice is considered complete as of the date of mailing ("as evidenced by a contemporaneous affidavit of service") or upon the notice's receipt by the tenant. Although the regulations were silent on that issue, the Court of Appeals opted for the former standard--date of mailing--but espoused a requirement that five days be added to every 10-day ETPR cure notice served by regular mail. As the court observed:
As every court to consider this case thus far has recognized, the regulation that purports to answer the question of when service of a notice is complete does not actually do so. It identifies permissible service methods and what constitutes proof of service but fails to specify when service is deemed to have occurred if service by mail is utilized....We therefore hold that owners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period.Since the Court of Appeals's decision in the Landaverde case, lower courts have grappled with whether the additional five days for mailing should be applied to other forms of rent regulation and other types of predicate notices (other than a "notice to cure).*
On September 22, 2006, the Appellate Term, First Department, finally chimed in on the issue and concluded that five days should be added to cure notices served pursuant to the Rent Stabilization Code. To that end, the court wrote:
While Landaverde was decided under the Emergency Tenant Protection Regulations (ETPR), no sound basis appears why the rule enunciated in that case...should not apply with equal force to cure notices that are similarly mailed, but governed by the Rent Stabilization Code, a regulatory scheme which, as landlord itself appropriately acknowledges, "serves a similar purpose as the ETPR".We hear through the grapevine that a decision relating to window-period or "Golub" notices will be coming down the pike. (Based on the wording of the Appellate Term's decision in South Park Estates Co. v. Hilverdink, many are speculating that the Appellate Term will likely limit Landaverde's holding to "cure" notices.) Until then:
"Fasten your seat beats."For a copy of the Court of Appeals's decision in Matter of ATM One v. Landaverde, please click on the following iink:
http://www.nycourts.gov/reporter/3dseries/2004/2004_04410.htm
For a copy of the Appellate Tern's decision in South Park Estates Co. v. Hilverdink, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26377.htm
------------------
*See, e.g., D&R Realty Corp. v. Blakely, N.Y.L.J., 7/20/05, p. 19, col. 1 (Civ. Ct., N.Y. Co.) (ATM One, LLC v. Landaverde applied to Loft Law tenant); 135 PPW Owners LLC v. Schwartz, 7 Misc. 3d 1016(A), 2005 WL 991489 (City Civ. Ct.) (ATM One, LLC v. Landaverde not applied to termination notices in licensee proceeding); Croman v. Thompson, N.Y.L.J., 2/23/05, p. 21, col. 3 (Civ. Ct., N.Y. Co.) (ATM One, LLC v. Landaverde applied to "Golub" notice); see also Shoshany v. Goldstein, N.Y.L.J., 2/9/05, p. 18, col. 3 (Civ. Ct., N.Y. Co.) (same); but see KSLM Columbus Apts. Inc. v. Bonnemere, N.Y.L.J., 1/5/05, p. 19, col. 1 (Civ. Ct., N.Y. Co.) (ATM One, LLC v. Landaverde not applied to "Golub" notice); see also Gnann v. Crawford, n.o.r., L&T 73194/04 (same); see Lower East Side I Associates LLC v. Estevez, 6 Misc. 3d 632, 787 N.Y.S.2d 636 (N.Y. City Civ. Ct. 2004) (ATM One, LLC v. Landaverde not applied to HUD recertification reminder notice); Southbridge Towers, Inc. v. Frymer, 4 Misc. 3d 804, 781 N.Y.S.2d 207 (N.Y. City Civ. Ct. 2004) (ATM One, LLC v. Landaverde applied to Mitchell-Lama tenants).