TenantNet Forum

Where tenants can seek help and help others

Matter of ATM One v Landaverde

A "basic repertoire" of controlling case law

Moderator: TenantNet

Matter of ATM One v Landaverde

Postby TenantNet » Sat Jan 31, 2009 4:28 pm

Matter of ATM One v Landaverde
2004 NY Slip Op 04410 [2 NY3d 472]
June 3, 2004
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 28, 2004

In the Matter of ATM One, LLC, Appellant,
Ana Landaverde, Respondent.

Argued April 29, 2004; decided June 3, 2004

Matter of ATM One v Landaverde, 307 AD2d 922, affirmed.
{**2 NY3d at 474} OPINION OF THE COURT

Graffeo, J.

In this appeal, the owner of a building challenges the dismissal of its holdover proceeding against a tenant allegedly violating the maximum occupancy provision of the parties' lease. We conclude that the proceeding was properly dismissed because the tenant was not afforded 10 days written notice to cure the alleged violation.

Section 2504.1 of the Division of Housing and Community Renewal's Emergency Tenant Protection Regulations sets forth restrictions regarding the removal of a tenant in a rent{**2 NY3d at 475}-stabilized housing accommodation. Prior to commencing a proceeding to recover possession [*2]based on a tenant's wrongful act, an owner must give the tenant written notice to cure (9 NYCRR 2504.1 [d] [1] [i]). The notice must state the wrongful acts of the tenant, the facts necessary to establish such acts and "the date certain by which the tenant must cure said wrongful acts or omission, which date shall be no sooner than 10 days following the date such notice to cure is served upon the tenant" (id. subcl [c] [emphasis added]). A proceeding may not be maintained if the tenant cures the specified wrongful act "by or before the date specified" (§ 2504.1 [d] [1] [ii]). At the time relevant to this appeal, the regulations also provided that

"[n]otices, orders, protests, answers and other papers may be served personally or by mail. When service is made personally or by mail, an affidavit by the person making the service or mailing shall constitute sufficient proof of service. When service is by registered or certified mail, the return post office receipt shall constitute sufficient proof of service" (9 NYCRR 2508.1 [a]).[FN1]

Respondent tenant leases a one-bedroom apartment in Freeport, New York from petitioner owner. On September 8, 2000, owner served tenant with a "Notice of Default; Ten Days' Notice to Cure; Thirty Days' Notice of Cancellation," alleging overcrowding in violation of the lease. The notice was sent by certified and regular mail on September 8, 2000, and set a "date certain" of September 18, 2000 for cure. It is undisputed that tenant received the notice on September 9, 2000, thus affording her only nine days to cure.

After expiration of the 30-day cancellation period, owner commenced this holdover proceeding against tenant. Tenant moved to dismiss the petition on the basis that she did not receive the mandated 10-day opportunity to cure. Owner opposed the motion, arguing that the 10-day period commenced upon mailing of the notice on September 8 and that tenant therefore received the requisite time to cure.

District Court dismissed the petition. In order to address the failure of the regulations to define when a mailed notice to cure shall be deemed served, the court "borrow[ed] the concept embodied in" CPLR 2103 by requiring owners to add five days to {**2 NY3d at 476}the prescribed period when serving by mail. Upon granting reargument, District Court adhered to its determination. Appellate Term affirmed. Although it agreed with District Court's rationale "that the regulatory purpose was to afford a tenant the full 10 days prescribed in which to cure a breach," the court rejected the addition of five days for service by mail in favor of a rule that service is complete upon delivery (190 Misc 2d 76, 77 [2001]). Owner appealed.

The Appellate Division also affirmed the dismissal of owner's petition. The Court defined service under the regulations "in terms of receipt rather than in terms of mailing" to effectuate the underlying policies and avoid "the possibility that, in a case involving an abnormally extended delay in the delivery of the mail, a tenant might not be told of the date within which he or she may cure a violation until after that date has actually passed" (307 AD2d 922, 923, 924 [2d Dept 2003]). Two Justices dissented and voted to reinstate the petition. The dissenting Justices viewed the plain meaning of the regulations as establishing that "the date of [*3]service is the date [the notice] was mailed as evidenced by a contemporaneous affidavit of service" and expressed concern that the Court's holding rendered the provision permitting service by mail ineffective because the owner "will never be able to know when the notice is actually received" (id. at 925). The Appellate Division granted owner leave to appeal to this Court.

Owner urges that, under the plain meaning of the regulations, service of the notice to cure was complete on September 8, the date the notice was mailed. Owner thus contends that the notice's September 18 date certain complied with the regulations, notwithstanding that once tenant received the notice she had only nine days to rectify her alleged lease violation. In contrast, tenant asserts that because the regulations are silent with respect to when service of a mailed notice to cure is deemed complete, the courts below properly looked to the policies and intent underlying the regulations to resolve the issue. In light of these considerations, tenant argues that the regulation entitles her to the full 10-day cure period before a holdover proceeding may be maintained and that this Court should adopt District Court's approach and require owners who mail notices to add five days when calculating the date certain by which tenants must cure. We agree with tenant and therefore affirm.

In matters of statutory and regulatory interpretation, we have repeatedly recognized that{**2 NY3d at 477}

"legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" (Mowczan v Bacon, 92 NY2d 281, 285 [1998] [internal quotation marks and citations omitted]; see Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

We are further guided by the tenet that regulations—like statutes—should be construed to avoid objectionable results (see People v Dozier, 78 NY2d 242, 250 [1991]; McKinney's Cons Laws of NY, Book 1, Statutes § 141; see also 2 NY Jur 2d, Administrative Law § 184 [administrative regulations generally subject to same canons of construction as statutes]).

The Division of Housing and Community Renewal (DHCR) adopted the regulations at issue in this case pursuant to its powers under the Emergency Tenant Protection Act of 1974 (ETPA [L 1974, ch 576, § 4, as amended]; see 9 NYCRR 2500.1). The Legislature enacted the ETPA to address the "serious public emergency" in housing across New York State as evidenced by "an acute shortage of housing accommodations" (McKinney's Uncons Laws of NY § 8622 [ETPA § 2]). In the legislative finding for the most recent extension of the Act, the Legislature determined that "preventive action . . . continues to be imperative in order to prevent exaction of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices tending to produce threats to the public health, safety and general welfare" (id.).

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 such service is deemed to have occurred if service by mail is utilized. Reading the service provision (9 NYCRR 2508.1 [a]) together with the notice to cure regulation (9 NYCRR 2504.1 [d]), we conclude that District Court's approach best effectuates the regulatory purpose to afford tenants a 10-day cure period before they may be subject to lease termination for designated [*4]violations. 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{**2 NY3d at 478} (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 (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Engel v Lichterman, 62 NY2d 943, 944-945 [1984]). "[M]ere denial of receipt is not enough to rebut this presumption" (Kihl, 94 NY2d at 122).[FN2] By its terms, of course, CPLR 2103 applies to pending actions, and we therefore do not extend its applicability to the commencement of summary proceedings. We agree with District Court, however, 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 rule advocated by owner—which would define the act of mailing as completion of service and permit owners to calculate the "date certain" from that starting point—is inconsistent with regulatory purpose to provide tenants a 10-day opportunity to cure and would lead to unpredictable results. The Appellate Division and Appellate Term rule, deeming service complete upon a tenant's receipt of the notice, is similarly flawed because an owner could not reliably compute and insert the date certain on the notice as required by the regulations. Instead, the rule we adopt balances the need for orderly and efficient resolution of lease violations with the stated legislative purposes of the ETPA. Here, the subject notice did not form a valid predicate for terminating the lease because the date certain as established by owner, when paired with the chosen service method, did not provide tenant the minimum 10-day cure period. Thus, owner's holdover proceeding was properly dismissed on this ground. We encourage DHCR to amend its regulations consistent with this determination in order to provide better guidance to parties who elect to serve notices to cure by mail.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed, etc.

Footnote 1: The regulation was subsequently amended to permit electronic service, among other changes.

Footnote 2: Indeed, the amended version of section 2508.1 (a) expressly provides that "[o]nce sufficient proof of service has been submitted to the division, the burden of proving nonreceipt shall be on the party denying receipt."
Posts: 9766
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby TenantNet » Sat Jan 31, 2009 4:37 pm

Note: Adam Leitman Bailey is a well-known landlord lawyer

The Limits of 'Landaverde'
By Adam Leitman Bailey and Dov Treiman
New York Law Journal
April 25, 2007

When in mid-2004 the New York Court of Appeals came down with ATM One, LLC v. Landaverde,[1] it clearly knew that it was stirring a hornet's nest of controversy.

That the Court was affirming an already controversial holding of the Second Department did nothing to lessen the controversy because the highest court's ruling staked out entirely different theoretical territory, clearly inviting many questions as to what the scope of this decision was to be.

Early commentaries[2] and cases[3] construing this decision recognized that Landaverde would be applied to more than it addressed, but there was no agreement on what the limits of Landaverde's reach were to be.

With the passage of two and half years, there is still no agreement on a conceptual framework for defining Landaverde's limits, although we are beginning to see as through a mirror, darkly, the outlines of some borders.

By its terms, Landaverde addressed one of the most common concepts of landlord-tenant relationships, the "notice to cure," by which a landlord requires a tenant to stop a purported violation of the lease on pain of lease termination and eviction.

Landaverde's notice was in Nassau County, under the Emergency Tenant Protection Regulations (ETPR)[4] regulating tenancies in several communities in several suburban counties. These regulations differ in several regards from the closely related Rent Stabilization Code[5] applicable inside New York City, but not significantly when it comes to notices to cure.[6] By its terms, the Landaverde rule is simply that under the ETPA, when a landlord sends a 10-day notice to cure by mail, five days must be added for a total of 15 days.

'Landaverde' Extended

Landaverde itself is silent on the question of how far it is to be extended, with the exception of its statement, "By its terms, of course, CPLR 2103 applies to pending actions, and we therefore do not extend its applicability to the commencement of summary proceedings."[7] That is the single place that Landaverde discusses what its full reach is to be. Interestingly, although alluding to it, no reported cases have quoted that passage.[8]

No sooner had Landaverde come down, than lower courts were extending its holdings beyond notices to cure under the ETPA. Notable in this controversy were cases like Wing Lee Realty, Inc. v. Man Yee Yon[9] where lower courts held that any time mailing was a "component" of service upon a notice, one would have to add the five days for mailing.[10] By its terms, Wing Lee was about a notice to quit under Real Property Actions and Proceedings Law (RPAPL) §713, which opens with the words, "A special proceeding may be maintained under this article after a 10-day notice to quit has been served upon the respondent in the manner prescribed in §735 . . . " The §735 in question is the RPAPL's service statute for summary proceedings, that statute which at the time of Landaverde was used for "the commencement of summary proceedings."

So, while the Court of Appeals refused to extend Landaverde to §735 for the purposes of commencing a summary proceeding, cases like Wing Lee extended it to those situations where some other kind of notice is borrowing §735's service methods.[11] Particularly in light of the quoted language from Landaverde itself, clearly the better view is that five days are not to be added for service effected by nail and mail.[12]

Other places tenants have sought to apply Landaverde have included commercial proceedings,[13] Mitchell-Lama proceedings,[14] reminder notices under the §8 programs,[15] nonprimary residence proceedings, personal use proceedings, termination notices,[16] and as in Wing Lee, supra, non-landlord-tenant proceedings under RPAPL §713.[17]

Question of Brevity of Time

A simple look at the list of proceedings should make apparent that not all of the notices in issue are 10 days in length. This brings us to an important point in our analysis of the Landaverde cases - the question of brevity of time.

Landaverde itself appears to require the full 10 days because it sees an urgency to the situation.[18] Naturally, one questions whether there is the same level of urgency if the notice in question is for 30 or even 90 or 150 days.[19]

However, in one of the rare appellate rulings on the extensibility of Landaverde, the Appellate Term for the First Department has held the five-day rule inapplicable to Golub notices.[20] In dicta, that same case declines to extend the rule to anything other than notices to cure. However, in Kerrin Realty Corp. v. Cruz,[21] there is a termination notice with only a seven-day period. Clearly from an "urgency" point of view,[22] this is even more so than in Landaverde and the court does find the addition of five days for mailing therefore required.

New York City Notices to Cure

It is now settled law in the Appellate Term First Department, inside the city of New York, that Landaverde extends its reach to notices to cure under the Rent Stabilization Code as well as such notices under the Emergency Tenant Protections under which it was decided.[23]

This is too readily assumed to be a foregone conclusion, however. Landaverde itself speaks of the necessity of the plus-five-for-mailing rule in order to effect the "regulatory purpose to provide tenants a 10-day opportunity to cure and would lead to unpredictable results."

However, no matter how short the service is inside New York City, the tenant will always have more than a 10 day opportunity to cure because once the summary eviction proceeding is brought, even if the tenant loses, the tenant is given an additional 10 days to cure after judgment.[24] One could readily argue that the fact that New York City has such a statute when the rest of the state does not makes Landaverde readily distinguishable and inapplicable within New York City.[25] Yet, the Appellate Term decisions have unanimously ruled that Landaverde applies inside New York City, without reportedly considering the effect of RPAPL §753(4) on their logic.[26]

The Future

There is a need to finding out if Landeverde is really about urgency. Does it only apply to notices where the real effect is that the occupant has a very brief time to do something serious? We need an appellate answer to that question. Until then, all sensible attorneys, just to keep their bases covered, should be adding five days for mailing everything.

Adam Leitman Bailey of Adam Leitman Bailey PC practices residential and commercial real estate law in New York and New Jersey. Dov Treiman is of counsel to Adam Leitman Bailey PC and he focuses on the firm's landlord-tenant practice.


1. 2 NY3d 472, 812 NE2d 298, 779 NYS2d 808 (Ct of Appeals).

2. See, for example, Estis & Robbins, "Notices to Tenant - When Do They Become Effective," NYLJ Feb. 5, 2005, p. 5.

3. See, for example, 135 PPW Owners LLC v. Schwartz, 33 HCR 337A, 7 Misc3d 1016(A) (Civ Kings Heymann) which describes the cases as being "all over the map."

4. 9 NYCRR Part 2500.

5. 9 NYCRR Part 2525.

6. 9 NYCRR 2504.1[d][1][i] for the ETPA; 9 NYCRR 2524.3(a), also known as Rent Stabilization Code (RSC) §2524.3(a), for rent stabilization.

7. We remind the reader that the "commencement of summary proceedings" at the time of Landaverde was effected by the service under RPAPL §735 of a notice of petition and petition which authorizes amongst its service methods, service by "nail and mail." Thus, by this sentence, the court implies that the five days should not be added to the "and mail" component of service.

Pursuant to Chapter 452 of the Laws of 2005, some courts of the state, including the New York City Civil Court, commence summary proceedings by filing the petition while other courts commence summary proceedings by serving the petition and notice of petition. At the time of Landaverde, all the local courts where one would expect to commence a summary proceeding were still under commence-by-service rather than commence-by-filing.

8. Neither the Court of Appeals nor anyone else has pointed to the Court's earlier ruling in Fiedelman v. New York State Department of Health, 58 NY2d 80, 445 NE2d 1099, 459 NYS2d 420, TLC Personal Jurisdiction 15, TLC Serial #0078 (Court of Appeals 1983), which refused to extend the "add five days" rule to anything under any regulations anywhere in the state.

9. 33 HCR 901B, 9 Misc3d 1104(A), decision dated June 29, 2005, Index #101272/04, HCR Serial #00015300 (Civ NY Milin).

10. Hab Clinton Assocs. v. Marsh, 33 HCR 901A, 9 Misc3d 1103(A), decision dated 8/23/05, Index #050238/05, HCR Serial #00015299 (Civ NY Milin).

11. 170 East 77th 1 LLC v. Berenson, 34 HCR 776A, 12 Misc3d 1017, NYS2d, HCR Serial #00016063 (Civ NY Jackman-Brown 2006), discussed Wing Lee and declined to follow its lead in applying Landaverde to RPAPL §735 nail and mail services.

12. 135 PPW Owners LLC v. Schwartz, supra; 170 East 77th 1 LLC v. Berenson, 34 HCR 776A, 12 Misc3d 1017, NYS2d, HCR Serial #00016063 (Civ NY Jackman-Brown 2006).

13. Landaverde is not applicable to commercial cases. Montgomery Trading Co. v. Cho, 34 HCR 207A, 11 Misc3d 1058(A), NYLJ March 15, 2006, 19:3, HCR Serial #00015648 (Civ NY Torres); Nick & Duke LLC v. John Hollings, Inc., 34 HCR 329B, 11 Misc3d 1063(A), NYS2d, HCR Serial #00015751 (Civ NY Jaffe 2006).

14. Southbridge Towers, Inc. v. Frymer, 32 HCR 502A, 4 Misc3d 804, 781 NYS2d 207, HCR Serial #00014481 (Civ NY Lebovits).

15. Lower East Side I Assocs. LLC v. Estevez, 33 HCR 229A, 6 Misc3d 632, 787 NYS2d 636, HCR Serial #00014870 (Civ NY Lebovits 2004), held that reminder notices do not require five additional days for mailing.

16. Kerrin Realty Corp. v. Cruz, 33 HCR 555A, n.o.r., decision dated Aug. 25, 2004, Index #L&T81894/03, HCR Serial #00015083 (Civ NY Lai).

17. RPAPL §713 presents a grab bag of proceedings where there is no landlord-tenant relationship. 135 PPW Owners LLC v. Schwartz, 33 HCR 337A, 7 Misc3d 1016(A), NYLJ May 4, 2005, 28:1, HCR Serial #00014949 (Civ Kings Heymann), unlike Wing Lee, supra, held the five days addition for mailing inapplicable to such proceedings. This is clearly the better rule.

18. In order to justify a ruling that requires five days added for a Golub notice, Lynch v. Dirks & Wolfe, 33 HCR 4A, NYLJ Jan. 5, 2005, 19:3, HCR Serial #00014706 (Civ NY Schneider), emphasizes that urgency was not a consideration in Landaverde. We respectfully disagree with that characterization of Landaverde and as noted below, the Appellate Term disagreed with the Court's conclusion that Landaverde should be applied to Golub notice.

19. RSC §2524.2, Golub notices.

20. Skyview Holdings LLC v. Cunningham, 34 HCR 875A, NYLJ Oct. 24, 2006, 22:1, HCR Serial #00016133 (AT1 McCooe; Davis, Gangel-Jacob).

21. 33 HCR 555A, n.o.r., decision dated 8/25/04, Index #L&T81894/03, HCR Serial #00015083 (Civ NY Lai).

22. But, see the discussion of RPAPL §753(4) immediately following.

23. W54-7 LLC v. Schick, 34 HCR — , -Misc3d-, NYS2d, NYLJ Dec. 20, 2006, 32:3, HCR Serial #00016258 (AT1 McCooe; Davis, Schoenfeld)

24. RPAPL §753(4).

25. Shoshany v. Goldstein, 33 HCR 81A, NYLJ 2/9/05, 18:3, HCR Serial #00014769 (Civ NY Capella), takes this very argument and turns it inside out in ruling that Golub notices require the additional five days (a rule later rejected by the First Department Appellate Term.) Shoshany sees Landaverde as monolithically applying to all notices to cure under rent regulation and notes that the presence of RPAPL §753(4) means that there really is no urgency with regard to notices to cure in New York City. Neither Shoshany's logic nor its holding have been followed in subsequent cases.

26. In South Park Estates Co. v. Hilverdink, 34 HCR 805A, Misc3d, NYS2d, NYLJ Sept. 28, 2006, 47:6, HCR Serial #00016088 (AT1 Davis; Gangel-Jacob), 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 - requiring the addition of five days to the 10-day statutory cure period for service by mail "to ensure that tenants are not disadvantaged by an owner's choice of service method" (id. at 478) - 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."
Posts: 9766
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Return to Seminal Landlord-Tenant Cases

Who is online

Users browsing this forum: No registered users and 1 guest