Tzifil Realty Corp. v Samuels

[*1] ? 2014 NY Slip Op 50886(U) Decided on May 22, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2012-2558 K C

Tzifil Realty Corp., Appellant,

against

Bruce Samuels, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated September 12, 2012. The order granted tenant's motion to dismiss the petition in a holdover summary proceeding.

ORDERED that the order is affirmed, without costs.

Landlord commenced this holdover summary proceeding after serving a notice that stated that the subject rent-stabilized tenancy was being terminated based upon, among other things, tenant's failure "to comply with the various Notices to Cure dated August 11, 2011, April 5, 2011, March 1, 2010, January 9, 2009 and June 19, 2008." Tenant moved to dismiss the petition pursuant to CPLR 3211 (a) (7). The Civil Court granted the motion, finding that the March 1, 2010 and January 9, 2009 notices to cure did not provide the proper cure period. On appeal, landlord takes the position that the petition was improperly dismissed, as the August 11, 2011 notice to cure provided for a sufficient cure period and that any alleged deficiencies in the remaining notices to cure are irrelevant.

When a landlord elects to serve a 10-day notice to cure by mail, it must compute the cure date by adding an additional five days to the cure period (see Matter of ATM One v Landaverde, 2 NY3d 472 [2004]; South Park Estates Co. v Hilverdink, 13 Misc 3d 62 [App Term, 1st Dept 2006]). The August 11, 2011 notice provided for a cure date of August 25, 2011, which was only 14 days after the notice was served by mail. The Court of Appeals specifically rejected the rule advocated by landlord in this proceeding—that service should be deemed complete upon tenant's receipt of the notice (Matter of ATM One, 2 NY3d at 478)—which, in the case of the August 11, 2011 notice to cure, would have given tenant more than the statutory 10 days to cure. Landlord's reliance upon Skyview Holdings, LLC v Cunningham (13 Misc 3d 102 [App Term, 1st Dept 2006]) is misplaced, as the court in that case specifically noted that the rule stated in Matter of ATM One, which it declined to extend to another type of notice, "was meant to be confined specifically and narrowly to the 10-day cure notice there involved." Thus, the Civil Court properly granted tenant's motion to dismiss the proceeding.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.

Decision Date: May 22, 2014