Matter of ATM One, LLC v. Landaverde

In Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472 (2004), the landlord brought a holdover proceeding alleging that the tenant violated the maximum occupancy provision of the parties' lease. The tenant received the notice to cure nine days before the date by which she had to cure. The applicable regulation provided the tenant with a minimum of 10 days to cure the alleged violation of lease. The Court of Appeals held: Owners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period (see e.g. CPLR 2103 [b] [2]). In this manner, service will be deemed complete upon mailing, and a properly executed affidavit of service will raise a presumption that proper mailing occurred. We agree with District Court...that the addition of a definite number of days is necessary for service by mail to ensure that tenants are not disadvantaged by an owner's choice of service method, and that such an addition provides a practical and fair solution to this regulatory ambiguity. The Court of Appeals explained that the addition of five days when serving cure notices by mail "balances the need for orderly and efficient resolution of lease violations with the stated purposes of the ETPA [Emergency Tenant Protection Act]." (Landaverde at p 478.) As expressly stated, the central concern was that tenants receive the benefit of the cure period and not be disadvantaged by the service method, which could result in inadvertent forfeiture of their regulated tenancies. The Court of Appeals held that landlords who elect to serve by mail must assume that the cure notice could spend five days in the mail before a tenant might receive it. (See 2 N.Y.3d at 477.) By its terms, Landaverde applies only to rent-stabilized apartments subject to the DHCR's regulations enacted under the Emergency Tenant Protection Act (ETPA). The Court of Appeals found DHCR's requirements regarding the landlord's service of its notice to cure by mail so vague as to merit the clarification it provided in Landaverde. The Court of Appeals held that "the addition of a definite number of five days . . . provides a practical and fair solution to this regulatory ambiguity." (Id. at 478.) The Court also held that service under the law is deemed complete on mailing. (Id. at 478.) The Court of Appeals held that adding additional five (5) days notice when a notice to cure is served by mail best effectuates the regulatory purpose, which is to afford tenants a full ten (10) day cure period before their tenancy can be terminated. The Court of Appeals further held that the addition of a definite number of days is "necessary for service by mail to ensure that tenants are not disadvantage by an owner's choice of service method." (ATM One, LLC v. Landaverde, Id. at 477-478.) The Court of Appeals concluded that to effectuate the legislative goal of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, 4, as amended) to address the "serious public emergency" in housing across New York State, the implementing regulations requiring landlords to give tenants in rent-stabilized housing 10 days' advance notice to cure wrongful acts must be interpreted to include an additional five days' notice when the notice is served by mail. (See Matter of ATM One v. Landaverde, 2 NY3d at 477-478.)