Opinion
L T 101272/04.
Decided June 29, 2005.
Respondents move for an order granting them summary judgment dismissing the petition pursuant to CPLR 408, 3211 (a) and/or 3211 (a) (7) and 3212 (a) and (c).
Petitioner commenced this holdover proceeding against respondent-licensee Man Yee Yon ("respondent") and respondent-undertenants, "John and Jane Doe," to recover rent stabilized Apartment 2, located at 17 Mott Street, New York, New York. Petitioner claims that respondent was a licensee and/or subtenant of Nung Leung, the tenant of record, who is now deceased. Prior to commencing this proceeding, petitioner served a ten-day notice to quit.
Respondent claims that he is 73 years of age; that he and his wife arrived in the United States from China in February, 1990; that upon their arrival they moved into the subject apartment; that the tenant of record, Nung Leung, his wife's father, died in May 1992; that he and his wife had lived continuously in the subject apartment since coming to this country; and that accordingly, they are entitled to succession rights.
In the answer verified by an attorney, it is claimed that the manager of the restaurant located on the ground floor of the building also acts as the agent for the landlord; that in early 1992, shortly before a planned visit to his son in Michigan, Nung Leung introduced the respondent and his wife to the manager, and advised him that they were living with him and would be paying the rent; that Nung Leung went to Michigan in March 1992, and died there on May 21, 1992; that after Nung Leung went to Michigan, respondent and his wife paid the monthly rent of $180.00, in cash, in person, to the manager; that the manager insisted on giving a receipt in the name of Nung Leung; that over the next several years the rent increased to $220.00 per month; that in 1999 the manager requested that respondent and his wife sign a lease and pay $350.00 per month rent, which they refused to do; that since that time the landlord has refused to accept their monthly rent payments; that on two separate occasions in 1999 the landlord served a notice to cure, alleging an illegal sublet, but took no further action; that by letter dated February 21, 2001, an advocate respondent had consulted advised the landlord that respondent and his wife were entitled to succession rights; and that it was not until November 2004, that petitioner served a notice to quit, and thereafter commenced this proceeding.
In opposition to this motion, petitioner submits a copy of an affidavit from Kwong-Hung Wan, Secretary of Wing Lee Realty, Inc., submitted on a previous motion, in which he claimed that he was co-manager of the subject building; that when respondent and his wife moved into the subject apartment, he thought that Nung Leung was still residing in the apartment; that as a result he accepted the rent from the respondent, but made out the receipts in the name of Nung Leung; that he never offered respondent a written lease; that it was not until 1999 that he was advised that Nung Leung had died years earlier; that at that time petitioner retained an attorney to commence an eviction proceeding; that the attorney advised petitioner that he would have to conduct an investigation before commencing a proceeding; that years passed without the attorney commencing a proceeding; and that finally, petitioner retained a new attorney, who commenced the within proceeding.
The ten-day notice to quit was served by "nail and mail" service by affixing a copy to the door of the apartment on November 10, 2004 and by making the required two mailings that same date.
Respondents, citing ATM One LLC v. Landaverde ( 2 NY3d 472), claim that since a required element of "nail and mail" service is the two mailings, petitioner was required to add five days to the ten-day period to quit; that, in this case, since the mailings occurred on November 10, 2004, respondents should have been given until November 25, 2004 to vacate the premises. Respondents claim that since the notice to quit gave them only until November 22, 2004, the notice is defective, and this proceeding must be dismissed.
In the Landaverde case, the landlord served a ten-day notice to cure by mail. The Emergency Tenant Protection Regulations, 9 NYCRR § 2508.1 (a), provide that notices may be served personally or by mail. The tenant received the notice to cure only nine days before the cure period expired.
The court noted that the Rent Stabilization Regulations were ambiguous as to when service of the notice is complete when the notice is served by mail. The court held that in order to insure that the tenant receives the minimum ten days to cure, a landlord who elects to serve by mail, must add five days to the ten-day cure period. In finding that the notice to cure was defective the court stated as follows:
"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. In this manner, service will be deemed complete upon mailing, and a properly executed affidavit of service will raise a presumption that proper mailing occurred. '[ M]ere denial of receipt is not enough to rebut the presumption.' By its terms, of course, CPLR 2103 applies to pending actions, and we therefore do not extend its applicability to the commencement of summary proceedings. We agree with District Court, however, that the addition of a definitive number of days is necessary for service by mail to ensure that tenants are not disadvantaged by an owner's choice of service method, and that such an addition provides a practical and fair solution to this regulatory ambiguity." (at 477-478, citations and footnote omitted).
Petitioner argues that respondent's reliance upon Landaverde, is misplaced because the notice in this case was served by conspicuous place service and not by mailing alone. Accordingly, petitioner concludes that the posting of a copy of the notice at the premises renders Landaverde inapplicable.
However, since conspicuous place service also requires a mailing, petitioner was required to add an additional five days to the notice to quit period. In this regard it must be noted that the court respectfully declines to follow the holding in 135 PPW Owners LLC v. Schwartz, 7 Misc 3d 1016(A), (Civil Court, Kings County 2005), where it was determined that the Landaverde ruling did not apply to notices to quit. However, the mandate expressed by the Court of Appeals in Landaverde, was that a respondent was entitled to be afforded the full amount of a notice period and should not be disadvantaged by the method of service employed by an owner. It is therefore consistent to apply this same reasoning to the time period provided for in a notice to quit where a respondent is being called upon to prepare to vacate or defend their claim to tenancy.
Based on the foregoing the motion to dismiss is granted.
This constitutes the decision and order of the court.