135 PPW Owners LLC v. Schwartz

In 135 PPW Owners LLC v. Schwartz (7 Misc 3d 1016[A], 801 NYS2d 238, 2005 NY Slip Op50629[U] [2005]), the respondent was not the tenant of the premises but a licensee and the court determined that it was not necessary to add five additional days to the mailing of the notice to quit pursuant to Real Property Actions and Proceedings Law 713 (7). As there was no landlord-tenant relationship, the respondent in that case did not have the same status or protections to remain in the premises as the rent-stabilized respondents here, who have a claim of entitlement to the subject premises as leaseholders. As the Court succinctly pointed out: "The Court of Appeals clearly indicated that the additional five (5) day rule for mailing enunciated in CPLR 2103 applied to pending actions and did not extend its applicability to the commencement of summary proceedings. But this is where the Court stopped short. Had the Court intended that an additional five (5) days be applied in every instance where a predicate notice is served by mail only, when not served personally, or in instances where mailing is an additional requirement, as with the service pursuant to RPAPL 735, where personal service is unsuccessful and one of the two other prescribed methods of service are utilized, it could have simply stated as much. On the other hand, it could have also explicitly stated when it does not apply. As a result of the Court limiting its decision exclusively to the notice to cure addressed in the appeal, without more, the lower courts are all over the map in trying to ascertain when and to which notices the additional five (5) days are to be factored in."