Is a Notice to Cure Required to Commence Hold Over Proceedings Due to Non-Payment of Rent by Tenant ?

In Park Summit Realty Corp. v. Frank, 84 A.D.2d 700, 448 N.Y.S.2d 414 (1st Dept. 1981), aff'd 56 N.Y.2d 1025, 453 N.Y.S.2d 643, 439 N.E.2d 358 (1982) the landlord commenced a holdover proceeding due to continued nonpayment of rent by the tenant. The petition was dismissed for failure to serve a notice to cure. The Court of Appeals held that "a notice to cure was required whether the proceeding be as a holdover after termination of [the] tenancy ... or as a nonpayment proceeding." Petitioner could have commenced the instant proceeding as a nuisance case and thereby have been relieved of the obligation to serve a notice to cure. However, having opted to proceed on a theory of a violation of a substantial obligation of the tenancy, petitioner was required to serve a notice to cure and the failure to do so is a fatal defect. Id.