Is the Landaverde Rule applicable to 3 day rent demands?

[Anna]

aubergine asked: "I still think the original Landaverde question is not a straightforward one. If a ten-day cure period requires an extension for service by mail, why should an extension not be required for alternative service of a rent demand?"

answer: Because there is no such thing as 'service by mail' of the rent demand or the petition. The mailings are in addition to substitute or conspicuous place service: think of them as 'back-up copies'.

In Landaverde,the courts dealt with the RSC which specifies service in person or service by mail alone (not as backup to substitute or conspicuous place service), and now must add 5 days to the latter to ensure that tenants actually get the full ten days to cure or 30 days before termination. Other courts have added five days to other notices in the RSC, none of which define WHEN service is complete.

Judge Billings, a Civil Court judge, not Housing Court, clearly stated the obvious conflict between 711 & 735; however, her conclusion is only that the 'within 3 days' section of 735 cannot apply to rent demands, not the answer to the question: "when is service complete?" She still concludes that service is complete upon filing of proof of service: LLs simply cannot file proof until after 3 days, not within 3 days ... which is common knowledge among LL-lawyers and the HC court clerks (who will not allow such 'filing proof & purchase of index #' until the date certain passes, i.e., more than 3 days).

http://www.tenant.net/.WWW/ubbgraphics/ultimatebb.php?ubb=get_topic;f=2;t=000120

[Aubergine]

Originally posted by Anna:
Judge Billings . . . concludes that service is complete upon filing of proof of service

Not of the rent demand -- quite the contrary. She asserts that service of the three-day notice must, by definition, be completed at least three days before the filing of the initial pleading, and since the latter event coincides with the filing of proof of service of the rent demand, it cannot mark the completion of service. The most logical alternative point of completion is the mailing of the demand, no? And while you're correct that substituted service under RPAPL 735 is something different from "service by mail," it can certainly be seen as _including_ service by mail as one of its components, and indeed its final one before the filing of proof.

BTW, there is case law going both ways about the "date certain" issue, isn't there?

[Anna]

NYHawk:

Another Landaverde decision for your collection:

135 PPW Owners LLC v. Schwartz
7 Misc.3d 1016(A), Slip Copy, 2005 WL 991489

**1 135 PPW Owners LLC, Petitioner,
v.
Inara Schwartz, RICHARD SCHWARTZ, "JOHN DOE" AND "JANE DOE", Respondents.
55888/05

Civil Court, Kings County
Decided on April 27, 2005

Digest-Index Classification:
Landlord and Tenant--Rent Regulation--Notice to Quit

OPINION OF THE COURT

George M. Heymann, J.

Petitioner commenced this licensee holdover proceeding with the service of a Ten (10) Day Notice to Quit, ("Notice") dated January 5, 2005, demanding that the respondents vacate the subject premises, located at 135 Prospect Park West, Apartment #41-A, Brooklyn, New York 11215, no later than February 2, 2005. The Notice was served by affixing copies to the door of the subject premises [conspicuous service] on January 18, 2005 at 10:10 A.M., after a first attempt at personal service on January 14, 2005 at 6:59 P.M. proved unsuccessful. One day thereafter, on January 19, 2005, copies of the Notice were mailed to each respondent at the subject premises by certified and regular mail. [FN1]
Petitioner has moved for discovery and use and occupancy. Respondent cross-moved for dismissal of the instant proceeding on the ground that the petitioner failed to serve the Ten (10) Day Notice to Quit in a timely fashion, [e.g.: 14 days prior to the vacate date instead of 15] in accordance with the recent Court of Appeals decision Matter of ATM One, LLC v. Landaverde ("Landeverde"), 2 NY3d 472, 779 NYS2d 808 (2004), which added five days to the service of a 10-day Notice to Cure.

QUESTION PRESENTED
Does the holding in Landeverde, apply to predicate notices required to be served pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 735 in order to commence holdover proceedings under section 713 of the RPAPL where there is no landlord-tenant relationship?

LANDEVERDE
On June 3, 2004 the Court of Appeals rendered its decision in Matter of ATM One, LLC v. Landaverde supra, which concluded that in order "to afford tenants a 10 day cure period before they may be subject to lease termination for designated violations .... 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 complete upon mailing and a properly executed affidavit of service will raise a presumption that proper mailing occurred." (Id. at 477-478) (Emphasis added)
Recognizing that there was "ambiguity" in the Division of Housing and Community Renewal ("DHCR") regulations regarding the service of a 10-day notice to cure by mail the Court determined that "the addition of a definite 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." (Id. at 478)
Although the Court refers to Civil Practice Law and Rules ("CPLR") 2103[b][2] which requires the addition of five (5) days to prescribed periods for service by mail, the Court clearly stated that such provision applied only to pending actions and declined to extend its applicability to the commencement of summary proceedings.
As the Court of Appeals opined:
"...the regulation that purports to answer the question of when service of a notice is complete does not actually do so. It identifies permissible service methods and what constitutes proof of service but fails to specify when such service is deemed to have occurred if service of mail is utilized." (Id. at 477)
Ironically, in its attempt to find a "fair and practical solution to this regulatory ambiguity" (Id. at 478) the Court of Appeals has actually opened the floodgates to numerous conflicting opinions by Judges of the Housing Court regarding the applicability of Landeverde to various types of notices other than a notice to cure.
As noted in Estis & Robbins, "Notices to Tenant - When Do They Become Effective", NYLJ, 2/5/05, p.5; 8:
"In short, the Court of Appeals decision in Landeverde is only eight months old. At this early stage of interpreting and applying that decision, it is obvious there is and will be disagreement among lower court judges. The Court of Appeals concluded its decision by expressly 'encourag[ing] DHCR to amend its regulations consistent with this determination in order to provide better guidance to parties who elect to serve notices to cure by mail.' Until there is appellate authority addressing the applicability of Landeverde to notices other than the particular type of notice involved in that case, or until the agency promulgates unequivocal rules on the issue of notices served by mail, it would seem that lower courts will continue to differ on the subject." [FN2]

ARGUMENTS OF COUNSEL
Respondent's counsel raises the following points in support of his position that the petitioner did not provide the respondents with a timely notice:
"11. The essence of Landeverde is that where a statute - in this case, RPAPL §713(7) - prescribes a mandatory minimum period for notice, the courts must assure that the tenant is 'afforded the full notice period allowed under' the statute. (Citation omitted)(Emphasis added by counsel) To do this, the Court of Appeals adopted the five-day requirement for mailing contained in CPLR §2103.
"13. ... a 10-day time frame for a notice to quit must be taken every bit as seriously as a 10-day notice to cure. If anything, it must be more strictly enforced, as a notice to cure merely asks a tenant to cease certain conduct while a notice to quit demands that they vacate and surrender an apartment. Where, as here, service is accomplished by mail, the Court of Appeals has established a 'bright line' requirement that the serving party add five days.
"14. There is no principled basis for finding any particular notices less important than another. If these periods are meaningful, they are all equally meaningful. Accordingly, Landeverde applies and petitioner's service by mail in this case 14 days in advance is defective. The court must dismiss the petition." (Emphasis added by counsel). (Respondent's Notice of Cross-Motion, pp. 3-5)
With regard to the service by mail, respondent inserted the following footnote in paragraph 13, supra:
"In this case, petitioner alleges conspicuous place service that combines posting on the door of the premises with two mailings. Yet, the mailings are a mandatory element of the statutory service requirement. See RPAPL §§711(7) [FN3] & 735 (1). Therefore, the same standard must apply even if the fixing was done at least ten days in advance. The purpose of the mailings is to ensure that the tenant receives the notice. The Landeverde rule ensures that the tenant receives the notice - by all statutorily required means - on time." (Id. at p.4)
Petitioner's counsel argues that " the proceeding at bar is not for the benefit of a regulated tenant, but rather is a 'predicate to a licensee/squatter proceeding thus providing service of a ten (10) day Notice to Quit, service being effectuated upon mailing and CPLR §2103 or Landeverde having absolutely no application." (Reply Affirmation, p.2,¶8). Counsel further contends that the language of RPAPL §713 does not require at least ten (10) full days of notice before maintaining a proceeding but rather merely ten (10) days after notice has been served; and that RPAPL §735 does not require an additional five (5) days mailing.

RELEVANT STATUTES
RPAPL §713. Grounds where no landlord-tenant relationship exists.
A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:
7. He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property; ...

RPAPL §735. Manner of service; filing; when service complete.
1. Service of the notice of petition and petition shall be made personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,
(a) if a natural person, as follows: at the property sought to be recovered.....
2. The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;
(a) personal delivery to respondent, when service has been made by that means, and such service shall be completed immediately upon such delivery; or
(b) mailing to respondent, when service is made by the alternatives above provided, and such service shall be completed upon the filing of proof of service.

DISCUSSION OF STATUTES AND CASE LAW
It should be noted at the outset that, unlike all the other cases cited in footnote 2 above, the parties herein do not have a landlord-tenant relationship. Thus, as licensees, the respondents in the instant matter do not have the same status or protection as tenants to remain in their premises, as did the respondent in Landeverde, supra. In that case, the Court of Appeals was concerned that the tenant was not accorded "the full 10-day cure period before a holdover proceeding may be maintained." (Id. at 476) As such, the legislative intent of giving a tenant a minimum designated time frame within which to cure a lease violation to avoid forfeiture of his or her premises would be thwarted. There, the Court addressed the "ambiguity" of the DHCR regulations concerning the completion of service of a notice to cure where the landlord opts to serve said notice by mail, as opposed to personal service.
The language of the statute in Landeverde, supra, regarding the notice to cure provides that the notice state: "the date certain by which the tenant must cure said wrongful acts or omission, which date shall be no sooner than 10 days following the date such notice to cure is served upon the tenant." (9 NYCRR 2504.1[d][1][c]) The statute further provides for only two methods of service: personal or by mail. (9 NYCRR 2508.1[a])
In its decision, the Court of Appeals never went beyond the parameters of those two statutes. It clearly indicated that the additional five (5) day rule for mailing enunciated in CPLR § 2103 applied to pending actions and did not extend its applicability to the commencement of summary proceedings. But this is where the Court stopped short. Had the Court intended that an additional five (5) days be applied in every instance where a predicate notice is served by mail only, when not served personally, or in instances where mailing is an additional requirement, as with the service pursuant to RPAPL § 735, where personal service is unsuccessful and one of the two other prescribed methods of service are utilized, it could have simply stated as much. On the other hand, it could have also explicitly stated when it does not apply. As a result of the Court limiting its decision exclusively to the notice to cure addressed in the appeal, without more, the lower courts are all over the map in trying to ascertain when and to which notices the additional five (5) days are to be factored in.
In the case at bar, as previously stated, the respondents are licensees and not the tenants of record. This proceeding was commenced under an entirely different statute from the one cited in Landeverde, supra, and specifically pertains to "grounds where no landlord-tenant relationship exists." (RPAPL § 713)
Moreover, the service of a notice under RPAPL § 713 must be made "in the manner prescribed in section 735" which, as set forth above, requires a mailing in addition to either the service of said notice upon a person of suitable age and discretion or by conspicuously affixing it to or placing it under the door of the subject premises, where personal service could not be effectuated on at least the second attempt. Although service of a notice of petition and petition is complete when filed with the court or clerk thereof with an affidavit of service within three days after mailing same to the respondent, when the alternative means to personal service is made, the statute is unclear as to when it is complete for notices under RPAPL §713 or thirty (30) day termination notices to month to month tenants under Real Property Law ("RPL") § 232-a, both of which require service pursuant to RPAPL § 735. [FN4] Copies of the predicate notices and their respective affidavits of service are not filed independently in advance of the notice of petition and petition and are attached thereto and incorporated therein by reference. Thus, if the requirements of Landeverde, supra, apply to notices which are to be served pursuant to RPAPL §735, said statute should be amended accordingly to clarify when service of notices, in contrast to the notice of petition and petition, is complete.
In contrast to a notice to cure which requires a tenant to act within 10 days, or by the date set in the notice if greater than 10 days, to prevent the commencement of a holdover proceeding, a licensee cannot take any action that will prevent the commencement of a holdover proceeding, short of vacating the premises upon receipt of a notice to quit. The landlord's intentions are clear that he or she seeks to recover the subject premises. Such intentions are not based on any lease violations by a tenant who has the statutory right to cure such violations in order to maintain the landlord-tenant relationship. As stated in KSLM Columbus Apartments v. Bonnemere, NYLJ, 1/5/05, p.19, col. 1, where the court declined to apply Landeverde, supra, to a Golub Notice, "any action taken by the tenant immediate or otherwise will not negate the landlords intent not to renew the lease." Here, the landlord's intent not to allow the occupants, whose license expired upon the death of the tenant of record, to remain in the subject premises will not be altered by any action taken by the respondents. Therefore, unlike a situation where a landlord serves a a notice to cure, the outcome here will be the same, regardless of whether service was, as asserted by the respondents, one day short if five (5) days is added to the mailing.

CONCLUSION
Based on the forgoing analysis, it is the opinion of this Court that the holding in Landeverde, supra, is inapplicable to proceedings commenced pursuant to RPAPL §§ 713 and 735 and the respondent's cross-motion to dismiss the instant proceeding is denied. With respect to the petitioner's motion for discovery and use and occupancy that motion is disposed of as follows:
Branch 1 seeking discovery is granted subject to the redactions discussed and agreed upon between the parties' counsel and the Court this date.
Branch 2 seeking use and occupancy is granted to the extent that the respondents are directed to pay use and occupancy commencing May 1, 2005 in the amount of $543.49 which was the amount set forth in the last lease renewal dated September 19, 2003. These payments are without prejudice to any claims by the petitioner regarding past and / or future use and occupancy.
Accordingly, this matter will be marked "off calendar" until the completion of discovery at which time a motion to restore can be made to the Court.
This constitutes the decision and order of the Court.
Dated: April 27, 2005
George M. Heymann, J.H.C.
FOOTNOTES

FN1. This is the second licensee holdover proceeding commenced by the petitioner against the above named respondents seeking to recover possession of the subject premises. On November 4, 2004, this Court dismissed that action for failure to name the estate of the deceased tenant of record as a necessary party, as the lease term was still in effect. See, 135 PPW Owners LLC v. Schwartz, NYLJ, 11/17/04, p.19, col. 3, 2004 NYSlipOp 51599(U)

FN2. Applicability of Landeverde to the following notices as determined by recent case law: 'Golub' Notice: YES: Lynch v. Dirks and Wolf, NYLJ, 1/5/05, p.19, col.3; Shoshany v. Goldstein, NYLJ, 2/9/05, p.18, col.3; Croman v. Thompson, NYLJ, 2/23/05, p.21, col.3; NO: KSLM Columbus Apartments v. Bonnemere, NYLJ, 1/5/05, p.19, col. 1; Gnann v. Crawford, Civ. Ct., NY Co., 12/1/04, Index Nos. L&T 73194/04; 73195/04; 73196/04; Notice of Termination under RSC §2524.2(c)(2)[nuisance]:YES: Kerrin Realty Corp. v. Cruz, Civ. Ct., NY Co., Index No. L&T 89814/03; Notice to Cure in Mitchell-Lama cooperatives: YES: Southbridge Towers, Inc. v.Frymer, 4Misc.3d 804, 781 NYS2d 207; 30 Day Notice of Termination: NO: 116 2nd Avenue LLC. V. Bachachekewsky a/k/a Bachinsky, Civ. Ct. NY Co., 1/28/05,

Index No. L&T 83080/01

FN3. In the case at bar the service was pursuant to RPAPL §713(7) and the reference to 711(7) was probably a typographical error.

FN4. See, 116 2nd Avenue LLC. V. Bachachekewsky a/k/a Bachinsky, Civ. Ct. NY Co., 1/28/05, Index No. L&T 83080/01, where the court did not apply Landeverde, supra, to service of a 30 day termination notice served pursuant to RPAPL §735.

Copr. (c) 2005, Randy A. Daniels, Secretary of State, State of New York.

135 PPW Owners LLC v Schwartz
END OF DOCUMENT

(C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.