Opinion
October 26, 2001.
APPEAL from (1) an order of the District Court of Nassau County (Norman Janowitz, J.), dated November 30, 2000, which, in a holdover summary proceeding, granted a motion by respondent to dismiss the petition, and (2) an order of that court (Norman Janowitz, J.), dated March 1, 2001, which granted reargument and, upon reargument, adhered to the prior determination.
Wolfson Grossman, Westbury (Mary T. Lucere of counsel), for appellant.
Community Legal Assistance Corp., Hempstead (Gina Calabrese of counsel), for respondent.
FLOYD, P. J., DOYLE and WINICK, JJ., concur.
OPINION OF THE COURT
MEMORANDUM.
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 Said order was superseded by the order of March 1, 2001.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 5 days when service is by mail to certain prescribed periods, to the 10-day period prescribed by Emergency Tenant Protection Regulations (9 NYCRR) § 2504.1(d)(1) 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, affd without opn 46 A.D.2d 743; see, Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80). 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 A.D. 651; Lewis v. Clothes Shack, 67 Misc.2d 621 [App Term, 1st Dept]; Grabino v. Howard Stores Corp., 110 Misc.2d 591, 593; Levine v. Brillon, 117 N.Y.S.2d 388; NL Indus. v. Paine Webber 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.