NOSTRAND III EQUITIES LLC v. SMITH (2025)

As required by CPLR § 2219(a), the following is a recitation of the papers considered in the review of motion sequence 1 and sequence 2.

PAPERS NUMBERED

Notice of Motion, Affirmation/Affidavit, Exhibits 1 (seq 1)

Affirmation in Opposition 2, (seq 1)

Affirmation in Reply 3, (seq 1)

Notice of Motion, Affirmation, Exhibit 4, (seq 2)

Stipulation 5, (seq 2)

Correspondence to Court, etc 6, (seq 1)

For the reasons stated below Respondent's motion 1 is granted solely to the extent of deeming Respondent's proposed amended answer as served and filed. The remainder of Respondent's motion is denied, and the amended answer is limited in accordance with this order.

PROCEDURAL AND FACTUAL BACKGROUND

This is a summary nonpayment proceeding concerning an alleged rent stabilized apartment. Respondent has moved by motion sequence 1 to file an amended answer and for a summary determination based on the argument that Petitioner needed to add five days to a 14-day rent demand as it was served by conspicuous service and mailed.

Petitioner has opposed this motion but did not present arguments why the court should deny the motion, apart from arguing that Petitioner did not start the proceeding while ERAP was pending. Respondent has filed a reply.

Petitioner also filed a separate motion, sequence 2, to restore the proceeding to the calendar because ERAP has made a determination. That motion was settled by way of stipulation and will not be addressed herein.

The gravamen of Respondent's argument for dismissal is that the requirement that rule governing service of notices to cure announced in Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472, 779 N.Y.S.2d 808, 812 N.E.2d 298 (2004) should apply to rent demands. It is to this question that the court now turns.

LEGAL ANALYSIS

Landaverde requires that notices to cure add five days to the notice period if the notice is mailed. In other words, if a 10-day notice to cure is mailed, the date of mailing has to be fifteen days prior to the date stated in the notice. In Landaverde, the Court of Appeals reasoned that it would be unfair to shorten the cure period merely because of the landlord's choice to mail the notice (Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472, 477, 779 N.Y.S.2d 808, 812 N.E.2d 298 [2004] [“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.”]).

The question then arises, does the Landaverde rule apply to rent demands? There are good arguments on both sides. In favor of applying Landaverde to rent demands, Respondent points out that the reason for adding five days for mailing was to make sure that all notices that require a tenant cure a default should not provide less time than what the Legislature provided. If the Legislature wanted tenants to have 14 days to remedy a default in payment, then then tenants should have 14 days and no less than 14 days.

To see why this might be so, it is useful to consider why Landaverde does not apply to Golub and other types of notices. The reason is that there is nothing for a tenant to cure upon receipt of a Golub notice (21 W. 58th St. Corp. v. Foster, 44 A.D.3d 410, 411, 843 N.Y.S.2d 583 [1st Dept. 2007] [“Moreover, the policy concerns giving rise to the solution fashioned by the Landaverde court are not implicated in a situation where a 90/150 day notice of nonrenewal is served by mail.”]; 85th Columbus Corp. v. Cooperman, 45 A.D.3d 358, 845 N.Y.S.2d 280 [1st Dept. 2007] [“While a landlord serving a 10-day notice to cure by mail must factor an additional five days into the cure period, there is no requirement that a landlord add five days to service by mail of a 90/150-day notice of nonrenewal.”]).

Similarly, when a tenant receives a notice of termination there is nothing for a tenant to cure. Thus, the Appellate Term has held that Landaverde does not apply to notices of termination (see Brooklyn Home for Aged People HDFC v. Selby, 32 Misc.3d 130[A], 2011 N.Y. Slip Op. 51314[U], 2011 WL 2715378 [App. Term, 2d Dept. 2011] [holding that Landaverde does not apply to a 30-day notice of termination]).

This implies that where there is something to cure, the respondent should get the exact amount of time that was allotted by the Legislature. A rent demand, so the argument goes, is a notice to cure that requires the respondent to do something. The fact that the cure is the payment of money does not make a rent demand any less a notice to cure. On this logic, Landaverde should apply, and five days should be added to rent demands that are mailed.

On the other hand, even before the HSTPA, courts were reluctant to extend Landaverde to situations outside of notices to cure (see Skyview Holdings, LLC v. Cunningham, 13 Misc.3d 102, 827 N.Y.S.2d 399 [App. Term, 1st Dept. 2006]; RPS Greenvale Realty, LLC v. Rosa's of Roslyn, Inc., 18 Misc.3d 1145[A], 2008 N.Y. Slip Op. 50442[U], 2008 WL 623830 [Dist. Ct., Nassau County 2008]).

The limitation of Landaverde to notices to cure has been partially echoed by the Legislature. As the Honorable Bacdayan has pointed out, Landaverde was codified by 9 NYCRR (RSC) § 2524.3 (a), but no other predicate notice service requirement was similarly amended. If the Legislature intended to add five days for mailing for rent demand, the Legislature could have amended the necessary statutes when it passed the sweeping changes contained in the HSTPA. The fact that the Legislature declined to do so could indicate the Legislature's reticence in expanding Landaverde (see 2 W. 90th ST. Housing Corp. v. Jamshidi, ––– Misc.3d ––––, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 51520[U] [Civ. Ct., N.Y. County 2023]).

Another argument militating against applying Landaverde to rent demands is that, unlike a notice to cure a lease violation, a rent demand must be served pursuant to RPAPL § 735. The law is silent regarding the manner of service of a notice to cure a lease violation. Rather it is the lease that controls the manner of service (see e.g. 146 Flushing Ave., LLC v. 66S Fusion, Inc., 72 Misc.3d 128[A], 2021 N.Y. Slip Op. 50595[U], 2021 WL 2604579 [App. Term, 2d Dept. 2021] [reversing and dismissing the petition because the lease required the notice to cure had to be sent “by certified or regular mail, to the premises with attention to tenant's principal or to tenant's principal at a specified residential address”]; Hab Clinton Assoc., LL v. Marsh, 9 Misc.3d 1103[A], 2005 N.Y. Slip Op. 51381[U], 2005 WL 2130633 [Civ. Ct., N.Y. County 2005]).

This is an important difference. Tenants usually have little say in drafting residential leases. Since residential landlords typically chose how to serve notices to cure, without the Landaverde rule a tenant could be disadvantaged by the landlord's choice of a service method.

But where a landlord does not have a choice in service method (as with a rent demand that must be served pursuant to RPAPL § 735) there is less of a concern that a landlord can evade the Legislature's timeframe merely by choosing a method of delivery (cf. RPS Greenvale Realty, LLC, supra, 18 Misc.3d 1145[A] at *4-6 [ruling that Landaverde does not apply to commercial leases in part because “[t]he parties were free to fashion the standards of service through negotiation and providing for same in the lease clauses”]; Jamshidi, supra, ––– Misc.3d at ––––, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 51520[U], *6 [noting that “the requirement that a demand notice be served pursuant to (§ 735) is presumed to ensure that a tenant, like in Landaverde, actually receives the demand notice and the full benefit of the statute”).

Thus, even though no appellate decision holds that Landaverde does not apply to rent demands, the best reasons favor the proposition that it does not. While Respondent points to an unpublished lower court decision to the contrary, this court finds that Landaverde does not apply to rent demands.

CONCLUSION

For the reasons stated above, Respondent's motion for summary judgment is denied. The remainder of Respondent's motion sequence 1 is granted to the extent of deeming the proposed amended answer served and filed. Provided however, that the answer is limited by the parties' stipulation as well as this decision, which rules that Landaverde does not apply to rent demands. Motion sequence 2 was resolved by stipulation.

Proceeding is adjourned to February 7, 2025 at 9:30 am for all purposes, including trial. This constitutes the decision/order of the court.

Shantonu J. Basu, J.