Tenant Wasn't Given 10-Day Notice to Cure

Facts: Landlord sued to evict tenant after sending tenant a 10-day notice to cure. The notice was mailed to tenant on Sept. 8, 2000, and received by tenant on Sept. 9. The notice stated that the date by which a cure was due was Sept. 18. This was nine days after tenant got the cure notice. Tenant claimed that the cure notice was improper because it didn't give her 10 days to cure. Landlord argued that it complied with the Emergency Tenant Protection Act of 1974 (ETPA). The trial court ruled for tenant and dismissed landlord's petition. The court ruled that five days should be added for mailing. Landlord appealed. The appeals courts ruled against landlord, finding that the 10 days should start running on the day tenant got the notice, not the day it was mailed. Landlord then appealed to the Court of Appeals. Court: Landlord loses. ETPA regulations require landlord to send tenant a 10-day notice to cure. The regulations also require cure notices to be delivered personally or by mail. The regulations say nothing about when the delivery of the notice is complete. The court found that delivery was complete on the date landlord mailed the notice but that five days must be added to the cure period to allow for delay caused by mail, rather than personal delivery. The court encouraged the DHCR to amend the regulations to provide for the additional five days when cure notices are mailed.

ATM One, LLC v. Landaverde: NYLJ, 6/4/04, p. 19, col. 1 (Ct. App. NY; Graffeo, PJ, Kaye, G.B. Smith, Ciparick, Rosenblatt, Read, R.S. Smith, JJ)