Civil Court of the City of New York, Kings County, January 23, 2025

The Legal Aid Society, Brooklyn, for respondent.

Edelman Schwartz PLLC, Brooklyn, for petitioner.

For the reasons stated below respondent's motion 1 is granted solely to the extent of deeming respondent's proposed{**85 Misc 3d at 661} 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.[*2]

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 COVID-19 Emergency Rental Assistance Program of 2021 (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 the rule governing service of notices to cure announced in Matter of ATM One v Landaverde (2 NY3d 472 [2004]) should apply to rent demands. It is to this question that the court now turns.

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 15 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 v Landaverde, 2 NY3d 472, 477 [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{**85 Misc 3d at 662} provided. If the Legislature wanted tenants to have 14 days to remedy a default in payment, 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 AD3d 410, 411 [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 AD3d 358, 358 [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" (citation omitted)]).

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 Hous. Dev. Fund Co. v Selby, 32 Misc 3d 130[A], 2011 NY Slip Op 51314[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] [holding that Landaverde does not apply to a 30-day notice of termination]).[*3]

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 Housing Stability and Tenant Protection Act of 2019 (HSTPA), courts were reluctant to extend Landaverde to situations outside of notices to cure (see Skyview Holdings, LLC v Cunningham, 13 Misc 3d 102 [App Term, 1st Dept 2006]; RPS Greenvale Realty, LLC v Rosa's of Roslyn, Inc., 18 Misc 3d 1145[A], 2008 NY Slip Op 50442[U] [Nassau Dist Ct 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 Rent Stabilization Code (9 NYCRR) § 2524.3 (a), but no other predicate notice service requirement was similarly amended. If the{**85 Misc 3d at 663} Legislature intended to add five days for mailing for rent demands, 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. Hous. Corp. v Jamshidi, 84 Misc 3d 1266[A], 2023 NY Slip Op 51520[U] [Civ Ct, NY 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 NY Slip Op 50595[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 NY Slip Op 51381[U] [Civ Ct, NY 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, 18 Misc 3d 1145[A], 2008 NY Slip Op 50442[U], *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, 2023 NY Slip Op 51520[U], *6 [noting that "the requirement that a demand notice be served pursuant to (section 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{**85 Misc 3d at 664} lower court decision to the contrary, this court finds that Landaverde does not apply to rent demands.

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.