85TH COLUMBUS CORP v. COOPERMAN (2007)

Supreme Court, Appellate Division, First Department, New York.

85TH COLUMBUS CORP., Petitioner-Respondent, v. Steven COOPERMAN, etc., Respondent-Appellant.

Decided: November 13, 2007

SAXE, J.P., FRIEDMAN, SWEENY, McGUIRE, MALONE, JJ.

Penn Proefriedt Schwarzfeld & Schwartz, New York (Sharyn A. Tritto of counsel), for appellant. Thomas S. Fleishell & Associates, P.C., New York (Susan C. Stanley of counsel), for respondent.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 21, 2006, which reversed an order, Civil Court, New York County (Michelle D. Schreiber, J.), dated December 21, 2005, granting tenant's motion to dismiss the petition in a nonprimary residence summary holdover proceeding, and reinstated the petition, unanimously affirmed, without costs.

Appellate Term correctly determined that the notice of nonrenewal was timely served. While a landlord serving a 10-day notice to cure by mail must factor an additional five days into the cure period (ATM One, LLC v. Landaverde, 2 N.Y.3d 472, 779 N.Y.S.2d 808, 812 N.E.2d 298 [2004] ), there is no requirement that a landlord add five days to service by mail of a 90/150-day notice of nonrenewal (21 West 58th Street Corp. v. Foster, 44 A.D.3d 410, 843 N.Y.S.2d 583 [2007]; Skyview Holdings, LLC v. Cunningham, 13 Misc.3d 102, 827 N.Y.S.2d 399 [2006] ).

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