ATM ONE LLC v. LANDAVERDE (2001)

On the court's own motion, appeals consolidated for disposition.

Appeal from order dated November 30, 2000 unanimously dismissed.   Said order was superseded by the order of March 1, 2001.

Order dated March 1, 2001 unanimously affirmed without costs.

 We disagree with the District Court insofar as it applied CPLR 2103(b)(2), which adds five days when service is by mail to certain prescribed periods, to the 10 day period prescribed by section 2504.1[d][1] of the Emergency Tenant Protection Regulations for service of a notice to cure.   CPLR 2103(b)(2) applies only to “papers to be served ․ in a pending action”, and, therefore, by its terms, is inapplicable to a notice to cure, which is served before the commencement of a proceeding (Trustees of Columbia Univ. v. Bruncati, 77 Misc.2d 547, 356 N.Y.S.2d 158, affd. without opn. 46 A.D.2d 743, 360 N.Y.S.2d 1002;  see, Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 459 N.Y.S.2d 420, 445 N.E.2d 1099).   We agree with the District Court, however, insofar as it understood that the regulatory purpose was to afford a tenant the full 10 days prescribed in which to cure a breach.   Because forfeitures of leaseholds are not favored, the rule in real estate matters is that notices to cure and to terminate are deemed given upon delivery, not upon mailing (see, e.g., 98 Delancey St. Corp. v. Barocas, 82 N.Y.S.2d 802, 805, affd. 275 App.Div. 651, 86 N.Y.S.2d 659;  Lewis v. Clothes Shack, 67 Misc.2d 621, 322 N.Y.S.2d 738 [App.Term, 1st Dept.];  Grabino v. Howard Stores Corp., 110 Misc.2d 591, 593, 442 N.Y.S.2d 713;  Levine v. Brillon, 117 N.Y.S.2d 388;  NL Industries v. PaineWebber, Inc., 720 F.Supp. 293, 303).   Because the subject notice gave tenant only nine days from the date of the receipt of the notice in which to cure the breach, the notice was defective and could not serve as a predicate for terminating the lease.

MEMORANDUM.