Housing Court Decision Summaries
Skyview Holdings LLC v. Cunnningham
Oct. 24, 2006
Appellate Court:
Appellate Term, First Department
Trial Court:
Civil Housing Court, Bronx County
Trial Judge:
Hon. Eardell Rashford
Type of Action or Proceeding:
Holdover Proceeding -- Nonprimary Residency
Issues/Legal Principles:
The court held that an additional 5 days is not required when mailing a notice of nonrenewal (golub notice).
Source:
NYLJ 22:1 , Oct. 24, 2006
Referred Statutes:
9 NYCRR 2524.2[c][2]; 9 NYCRR §2508.1[a], 9 NYCRR §2504.1[d]
Summary:
The landlord served notice of nonrenewal by regular and certified mail 92 days prior to the expiration of the lease. There was no allegation that the tenant did not actually receive the notice within the 90/150 day window period. The trial court denied the landlord's motion for summary judgment and granted the tenant's cross-motion to dismiss the petition. The Appellate Term, in a per curiam decision reversed, holding that what has been known as the Landaverde rule requiring the addition of 5-days to 10-day notices to cure when served by mail would not be extended to the service of the 90/150- day notices of non-renewal. The Court reasoned that unlike a 10-day notice to cure the 90/150 day notice of non-renewal does not require the tenant to take an affirmative act within narrow time constraints. A tenant served by mail, even when delivery is unusually delayed, cannot be said to be disadvantaged by the owner's choice of service. The Court further held that the landlord's motion for summary judgment was properly denied as there were unresolved issues regarding the tenant's daughter's succession rights, even though it had been conclusively established that the tenant had vacated the unit and moved to Florida. In a concurring opinion, Justice McCooe stated that he would have distinguished the within rule from that of the notice to cure rule because in that case the tenant received less than the statutory actual notice and moved immediately to dismiss on that basis, whereas in the within case the notice was received within the statutory window and the motion to dismiss was delayed by two years.
Notes:
Decision:
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