Appeal by landlord, and cross appeal by tenant on the ground of inadequacy, from a final judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran III, J.), entered December 8, 2005. The final judgment dismissed the holdover summary proceeding and awarded tenant legal fees in the amount of $250.

Final judgment modified by vacating the provision thereof awarding tenant legal fees in the amount of $250; as so modified, affirmed without costs.

In this holdover proceeding, tenant moved to dismiss on the grounds, inter alia, that the 10-day notice to cure required by Emergency Tenant Protection Regulations (9 NYCRR) § 2504.1 (d) (1) was not timely served. The notice, which landlord alleges was served by regular and certified mail, is dated June 2, 2005 and specifies a cure date of June 13, 2005. Since landlord failed to add the five days required when such a notice is served by mail, the proceeding must be dismissed (ATM One, LLC v Landaverde, 2 NY3d 472 [2004]). In view of the foregoing, we do not reach the issue of whether the petition otherwise fails to state a cause of action. Tenant's application for attorney's fees is denied without prejudice to renewal upon the ultimate outcome of the controversy (see Elkins v Cinera Realty, 61 AD2d 828 [1978]; Farchester v Licini, NYLJ, Mar. 18, 1999 [App Term, 9th & 10th Jud Dists]; Park South Assoc. v Essebag, 126 Misc 2d 994 [App Term, 1st Dept 1984]).

Rudolph, P.J., McCabe and Lippman, JJ., concur. [*2]
Decision Date: February 6, 2007