Atm One V. Landaverde
Jan 01, 2003OUTCOME: Landaverde
In a holdover proceeding, the landlord ATM One, LLC, appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated October 26, 2001, ... which affirmed an order and judgment (one paper) of the District Court, Nassau County (Janowitz, J.), dated March 1, 2001, which granted the respondent's motion pursuant to CPLR 3211(a) to dismiss the proceeding, and dismissed the proceeding. ORDERED that the order and judgment is affirmed, with costs. On September 9, 2000, the respondent Ana Landaverde (hereinafter the tenant) received a notice from her landlord, the appellant ATM One, LLC (hereinafter the landlord), advising her that she had until September 18, 2000, to cure her alleged violation of the maximum occupancy provision in the parties' lease agreement. We agree with the Appellate Term (ATM One, LLC v Landaverde, 190 Misc 2d 76) that the intent of the governing regulation (9 NYCRR 2504.1[d][1][i][c]) is to assure that, prior to the commencement of this type of proceeding, the tenant is afforded at least 10 days within which to cure the alleged wrongful act upon which the proceeding is based. Because the tenant in this case was afforded only nine days within which to cure, we agree with the District Court and the Appellate Term that the proceeding should be dismissed. In accordance with the terms of 9 NYCRR 2504.1(d)(1)(i)(c), the landlord was required to demonstrate that, prior to commencing this proceeding, it advised the tenant, in writing, of the violation of which the tenant was accused, and of the tenant's right to cure such violation on or before a "date certain." The regulation further provides that the "date certain" selected by the landlord, and set forth in the "notice to cure," may in no event be less than 10 days following the date upon which such written notice was "served" (id.). There is no provision in the applicable regulations that specifies whether, when the notice to cure is served by ordinary mail, as is permitted in accordance with 9 NYCRR 2508.1, the service is deemed to have occurred (a) at the moment that the notice was delivered to an agent of the postal service or deposited in a receptacle under the exclusive control of the postal service, (b) at the moment that the notice was delivered to the address of the tenant as set forth on the envelope in which the notice is mailed, or (c) at the moment that the tenant personally opened the envelope and received the notice into his/her hands after its delivery to his/her address. The regulations are silent as to exactly when service of a notice to cure is considered complete when the landlord chooses to make service by ordinary mail. Contrary to the view of our dissenting colleagues, we do not believe that the "plain language" of the regulation requires the conclusion that the accomplishment of service is to be equated with the act of mailing, rather than with receipt, and we believe that to define service in terms of receipt rather than in terms of mailing is more consistent with the policies underlying the regulations. Of course, there are various regulations and statutes that, in an assortment of different contexts, define, more precisely than do the regulations now under review in this case, when service is deemed to have been made when the service in question was carried out by mail. Most familiarly, CPLR 2103(b)(2) states, in part, that when the service of papers during a pending action is [*3]authorized to be made by mail on an attorney for an adverse party, such service "shall be complete upon mailing." As noted by the Appellate Term in this case, CPLR 2103(b)(2) has no application here (see Trustees of Columbia University v Bruncati, 77 Misc 2d 547, affd 46 AD2d 743; see also Matter of Fiedelman v New York State Dept. of Health, 58 NY2d 80).
