Is the Landaverde Rule applicable to 3 day rent demands?

[NYHawk]

ATM One, L.L.C. v. Landaverde, 2 N.Y.3d 472 (2004)says 5 days must be added to the time for a tenant to respond to a 10 day notice to cure if it is served by mail. what about a 3 day rent demand that is served by conspicuous place service (with a required mailing) ??I can't find any cases on point. Thanks.

[Anna]

No, and there shouldn't be any either.

The Court added the five days because the RSCode failed to define when service of notices were complete.

As every court to consider this case thus far has recognized, 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 by mail is utilized.

RPAPL 735 (2)(b) clearly states "mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service."

A more important question: when a judge, after motion or trial, does not give an immediate decision but 'reserves decision' and mails it to both parties later, it usually states that 'warrant to issue in 5 (or 10) days from service of Notice of Entry of this decision/order'. LL then files this notice with the court clerk and mails one copy to tenant. When do the 5 days start: mailing date or mailing date + 5 days?

[Aubergine]

That's a great question, Anna, although it's off-topic.

In general, the five-day addition to a "period of time prescribed by law" also applies to time periods fixed by the court for a response by a party. Penn v. American Airlines, 192 A.D.2d 385 (1st Dep't 1993), Corradetti v. Dales Used Cars, 102 A.D.2d 272 (3d Dep't 1984). But the court must itself be within the law in using the service of a paper to measure the relevant time period.

At least in a nonpayment proceeding, I think the answer to your question would, unfortunately, be no. The 5-day or 10-day stay of issuance of a warrant in a nonpayment proceeding is prescribed by RPAPL § 732 as running from the date of the determination of the proceeding or from the service of the notice of petition, not from service of the notice of entry. Section 732(2) provides that "issuance of a warrant shall not be stayed for more than five days from such determination " (emphasis added). If the respondent defaults, § 732(3) provides for a stay of issuance "for a period of [sic] not to exceed ten days from the date of service" -- of the petition, not of a notice of entry of the default judgment.

Note also that RPAPL § 747-a, added as part of the Rent Regulation Reform Act of 1997, bars a Housing Court judge from granting a stay of more than five days from the entry of judgment in a nonpayment proceeding, except upon proof of payment or deposit of the judgement amount. Your example of an order including a stay running from the service of the notice of entry, could (in a nonpay) violate this and would certainly do so if the 5-day extension were added.

The Court of Appeals has applied the RPAPL's limitations on judicial discretion quite strictly. See in particular Mennella v. Lopez-Torres, 91 N.Y.2d 474 (1998) (affirming grant of mandamus where judge had ordered that warrant be issued five days after service of copy of default judgment upon the tenant by regular mail).

The situation may be different in a holdover, if the stay is one granted under RPAPL § 753(4), allowing the tenant a 10 day cure period. The CPLR 2103(b)(2) extension seems more likely to apply in this situation because the statute requiring the stay does not explicitly refer to a date from which the stay period is calculated. Although the 10 day post-judgment cure period is not expressly "measured from the service of a paper," the remedial purpose of RPAPL § 753(4) is to afford the tenant the benefit of a notice to cure a disputed obligation.

In light of the case law strictly construing the stay provisions of the RPAPL, I would be hesitant to take any chances on the assumption that CPLR 2103(b)(2) will allow an extra five days.

[Anna]

Nice analysis but HC judges DO routinely use this or a similar phrase in written decisions: 'warrant to issue in 5 (or 10) days from service of Notice of Entry of this decision/order'.
Think about the logistics if judge didn't add the phrase: 1. judge mails decision on Thu, Mon is holiday, tenant received it until Tue, day 5; tenant gets home from work to find decision and has no possible way to pay it on time because LL's office closed at 5pm... 2. judge made decision on Fri, didn't mail until Mon, tenant received it Wed, 9pm (day 5), again too late too pay it...

[Aubergine]

I agree it's an absurd result, but the legislature is to blame. One could certainly argue that calculating the maximum stay period from the entry of judgment rather than the service of a notice of entry violates the tenant's due process rights. But the theory underlying the cases I cited seems to be that adequate "notice and opportunity to be heard" is provided by the notice of petition, the hearing, and the 72-hour eviction notice, and thus futher notice assuring an opportunity to pay the judgment before a warrant issues is not required as a matter of due process.

Such an unfair result is hard to swallow, so you have a routine practice that violates the letter of the RPAPL. As long as LLs don't challenge it, it will continue, but Mennella and Matter of Brusco v. Braun, 84 N.Y.2d 674, held unequivocally that Housing Court judges "lacked the discretionary legal authority to . . . fashion . . . an additional procedural safeguard."

[Robert Fortune]

Originally posted by NYHawk:
ATM One, L.L.C. v. Landaverde, 2 N.Y.3d 472 (2004)says 5 days must be added to the time for a tenant to respond to a 10 day notice to cure if it is served by mail. what about a 3 day rent demand that is served by conspicuous place service (with a required mailing) ??I can't find any cases on point. Thanks.

I am interested in the use of the phrase "regular mail". Wouldn't such a notice, given its ramifications on\to the recepient of the notice, have to be via Certified Registered Return Receipt
US mail in order that there be no question that the notice was in fact mailed and that it was in fact recieved and when (Date & Time) it was recieved?

"I am not *ON* the blacklist. I *AM* the blacklist!" - Lizard~King Still Alive in 2005
+++++++++++++++++++++++++++++++++++++++++++++++++
0000000000000000000000000000000000000000000000000

[Aubergine]

Yes, both mailing by registered or certified AND regular mail are required if the rent demand is not served by personal delivery to the respondent.

The basis for this is RPAPL § 711(2), which requires service of a rent demand to be made "as prescribed in section 735"; the latter section prescribes "mailing to the respondent both by registered or certified mail, and by regular first class mail."

I'm glad we're going back to the original question, because it doesn't seem like such a straightforward "no" to me.

Anna referred earlier to RPAPL § 735(2)(b), which provides that service of a notice of petition and petition by mail is complete "upon the filing of proof of service." Anna, are you saying that in the case of a rent demand, service is complete upon filing of the petition which alleges service of the rent demand? I doubt this is what you meant.

If that is not the case, then I wouldn't say that the RPAPL defines when service of a rent demand is complete any more effectively than the RSC does in the case of a notice to cure. At most, it suggests that the service is complete upon mailing, while not expressly making an exception to CPLR 2103(b)(2).

Both a notice to cure and a rent demand require a response from the tenant within a certain period of time. Although it makes sense to deem service by mail complete upon mailing, it's also logical to add five days to the prescribed period of time to allow the mail to arrive. Since the RPAPL doesn't make a specific exception for rent demands, I don't see why they would not come within the general rule laid down by CPLR 2103(b)(2) ("where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period").

<small>[ April 16, 2005, 09:16 PM: Message edited by: aubergine ]</small>

[Anna]

The rent demand and the petition cannot be served only by mail: the two mailings are in addition to substitute service or conspicuous place service.

RPAPL does specify when service is complete, so Landaverde does not apply.

Service of the rent demand is complete upon filing proof of service of the rent demand (which is when LLs buy the index number).
Service of the petition is complete upon filing proof of service of the petition.

[Aubergine]

OK, Anna, now I see what you are saying -- service of a 3-day rent demand, if it's served other than personally on respondent, is complete upon filing of the petition, which includes proof of service of the rent demand.

But this would mean that the rent demand, which is supposed to give the tenant 3 days notice of the commencement of a summary proceeding, is "served" simultaneously with the commencement of the proceeding! This would be illogical, to say the least. Making "filing of proof of service" the point at which service of the rent demand is complete would put the LL in a bind --the commencement of the proceeding would occur before the three days allowed by the notice.

A typical form of rent demand states, "you are required to pay on or before the expiration of three days from the service of this notice or you must surrender possession of the premises to the landlord. If you fail to pay the rent or vacate the premises within this time, the landlord will institute legal proceedings . . . ." (2004 Tanbook, Form 1.) How can the LL "institute legal proceedings" three days after "the service of this notice" if the service occurs only upon commencement?

<small>[ April 17, 2005, 01:10 PM: Message edited by: aubergine ]</small>

[Anna]

The RPAPL proceeding 'commences' with the filing of the proof of service of the petition, not with buying the index number. To buy the index number, the LL files the unserved petition and proof of service of the rent demand, a statutory prerequisite to commencing an eviction proceeding.

NYCCC § 400. Method of commencing action or special proceeding. ... A special proceeding is commenced and jurisdiction acquired by service of a notice of petition or order to show cause.

And service of the petition is NOT complete UNTIL LL files proof of service in court, RPAPL 735.

For a more thorough discussion of 'commence', see early Pet Law decisions, where LL must commence the proceeding within 3 months.

[Aubergine]

Thanks for reminding me about commencement-by-service in the lower courts. This helps clarify the problem (although it doesn't solve it). If I understand correctly, you're saying that on Day 1, the LL may:

(1) serve the rent demand by an alternative method,
(2) purchase index #, file the petition (which alleges both the service of the rent demand AND T's default in response to it), and get the notice issued by the clerk, and
(3) serve the notice of petition and petition by an alternative method,

BUT must wait until Day 4 to commence the proceeding by filing proof of service of the notice of petition and petition, if the three-day notice requirement is to be complied with, AND may not wait longer than Day 4 to do so in order to comply with RPAPL § 735(2).

What's wrong with this should be obvious -- the tenant, if aware of the service of both the rent demand and the notice of petition, will inevitably believe that the proceeding has already been commenced on Day 1, before the three days promised by the rent demand. And since the petition itself alleges that the tenant has defaulted in response to the rent demand, the impression is even stronger that the LL is denying the tenant the three days. And of course the tenant doesn't know that the five days to answer specified in the Notice of Petition run from Day 4, not Day 1.

Thanks for helping me figure this out. I realize that the law in this area is not necessarily logical or even consistent with ordinary notions of fair play and due process, but it can take some effort just to see how irrational and unfair it is.

<small>[ April 17, 2005, 01:22 PM: Message edited by: aubergine ]</small>

[Anna]

NO: LL cannot serve the petition until the time stated in the rent demand runs out, a minimum of three days by law, five days by some leases AND usually longer because the rent demand MUST include a 'date certain' at least 3 or 5 days from completion of service. If tenant is shortchanged, the court must dismiss the petition, and will do it sometimes even if the tenant doesn't know this (most tenants don't).

[NYHawk]

[U] Frost Equities Co., LLC v. New York Brasserie Ltd., 5 Misc.3d 1004(A) (N.Y.City Civ.Ct. 04/22/2004)

[1] Civil Court of the City of New York, New York County

[2] No. 61467/2004

[3] 5 Misc.3d 1004(A), 2004.NY.0008882
[4] April 22, 2004

[5] FROST EQUITIES CO., LLC, PETITIONER
v.
NEW YORK BRASSERIE LTD. D/B/A CORRADO CAFE AND/OR CORRADO CAFE 68, RESPONDENT

[6] For Petitioner Donald Eng Esq. 1001 Avenue of Americas, New York, NY 10018

[7] For Respondent Urban S. Mulvehill Esq. O'Neill, DiManno & Kelly 15 Beekman Street, New York, NY 10038

[8] The opinion of the court was delivered by: Lucy Billings, J.

[9] This opinion is uncorrected and will not be published in the printed Official Reports.

[10] Respondent moves to dismiss or for summary judgment dismissing this commercial nonpayment proceeding on two grounds. Petitioner failed to (1) complete service of the rent demand by filing the affidavit of service in court within three days after service, as required by R.P.A.P.L. §§ 711(2) and 735(2), and (2) serve a notice providing five days to cure the nonpayment of rent, as required by the parties' lease ¶ 17(c). C.P.L.R. §§ 3211(a)(7) and (8), 3212(b). Upon oral argument April 22, 2004, for the reasons explained below, the court concludes that petitioner complied with the statutory and lease requirements and therefore denies respondent's motion in all respects.

[11] I. UNDISPUTED FACTS

[12] Petitioner served its written rent demand by substitute service, including the required follow-up mailing, Monday, March 8, 2004. Petitioner filed an affidavit of service of the rent demand in court as part of the petition Friday, March 12, 2004.

[13] The parties' lease ¶ 17(c) for the premises respondent rents from petitioner provides:

[14] Tenant shall not be deemed to be in default pursuant to this Lease by reason of its failure to pay rent unless Owner shall give Tenant notice of such failure and Tenant fails to cure such failure to pay rent within five days thereafter.

[15] Aff. of Ahmed Kalifa, Ex. C ¶ 17(c). Paragraph 17(1) pertaining to any "default pursuant to this Lease," to which subparagraph (c) adds a provision for defaults in fulfilling the covenant to pay rent, Kalifa Aff., Ex. C ¶ 17(c), provides that upon service of the notice to cure and expiration of the five days without a cure, the lease will terminate. Petitioner never served a notice that it was treating respondent's failure to pay rent as a default under the lease and giving respondent five days to cure the default to avoid the lease's cancellation.

[16] II. APPLICATION OF THE REQUIREMENTS FOR COMPLETING SERVICE AND FILING AN AFFIDAVIT OF SERVICE TO RENT DEMANDS

[17] A landlord may not maintain a summary proceeding for a tenant's nonpayment of rent unless, before commencing the proceeding:

[18] a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735.

[19] R.P.A.P.L. § 711(2). R.P.A.P.L. § 735 prescribes how the notice of petition and petition must be served and that these pleadings "with proof of service thereof shall be filed with the court . . . within three days" after service. R.P.A.P.L. § 735(2). When, as here, petitioner serves by substitute service, the "service shall be complete upon the filing of proof of service." R.P.A.P.L. § 735(2)(b).

[20] A rent demand is not a pleading to be filed with proof of service in a summary proceeding. J.D. Realty Assocs. v. Jorrin, 166 Misc 2d 175, 179 (Civ. Ct. NY Co. 1995), aff'd, 169 Misc 2d 292 (App. Term 1st Dep't 1996); Bonsignore v. De Bove Inc., N.Y.L.J., June 24, 1998, at 26 (Civ. Ct. NY Co.); Romea v. Heiberger & Associates, 163 F.3d 111, 117 (2d Cir. 1998). The demand provides a tenant notice of nonpayment of rent to permit the tenant's timely payment and avoid a summary proceeding. J.D. Realty Assocs. v. Jorrin, 166 Misc 2d at 179, aff'd, 169 Misc 2d 292; Kulok v. Riddim Co., 185 Misc 2d 195, 196 (Civ. Ct. NY Co. 2000); Zenila Realty v. Masterandrea, 123 Misc 2d 1, 10 (Civ. Ct. NY Co. 1984); Romea v. Heiberger & Associates, 163 F.3d at 117. The summary proceeding then is commenced by the service and filing of a notice of petition and petition. N.Y.C. Civ. Ct. Act (CCA) § 400; R.P.A.P.L. § 731(1); 528 E. 11th St. H.D.F.C. v. Durieaux, 164 Misc 2d 595, 596-97 (Civ. Ct. NY Co. 1995); 215 Bush St. Co. v. Jose, 146 Misc 2d 997, 999 (Civ. Ct. Bronx Co. 1990).

[21] To apply the requirements for filing proof of service to rent demands would completely negate the requirements' effect. Zappone v. Home Ins. Co., 55 NY2d 131, 138 (1982); Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc 2d 514, 518 (Sup. Ct. Suffolk Co. 1997); Matter of Marino S., 181 Misc 2d 264, 275 (Fam. Ct. NY Co. 1999); Matter of Gabriel M., 128 Misc 2d 313, 317 (Fam. Ct. Kings Co. 1985). By definition, the "three days' notice" prohibits a landlord from commencing a nonpayment proceeding and filing its initial pleadings until more than three days after serving the demand. R.P.A.P.L. § 711(2). Thus compliance with R.P.A.P.L. § 711(2) would prohibit compliance with R.P.A.P.L. § 735(2)'s filing requirements if applied to rent demands. The only reasonable interpretation of R.P.A.P.L. §§ 711(2) and 735(2), therefore, is that the requirements for filing an affidavit of service do not apply to rent demands. Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 124-25 (1990); Zappone v. Home Ins. Co., 55 NY2d at 137; Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc 2d at 518-19; Commissioner of Social Servs. v. Jessie B., 111 Misc 2d 617, 621-22 (Fam. Ct. NY Co. 1981). Only this interpretation gives effect to both statutes.

[22] Even if the filing requirements applied, CCA § 411 permits affidavits of service in summary proceedings to be filed late. Jamal Estates v. Crockwell, 113 Misc 2d 548, 549-50 (App. Term 1st Dep't 1982). See Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27 (App. Term 2d Dep't); Eiler v. North, 121 Misc 2d 539, 542 (County Ct. Delaware Co. 1983). Given this statutory provision, the failure to file an affidavit of service timely could hardly be a fatal defect. Jamal Estates v. Crockwell, 113 Misc 2d at 550; Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27. Personal jurisdictional requirements, moreover, are to give notice of adverse charges and action and the opportunity to confront and defend against them. Petitioner satisfies these fundamental elements once it informs respondent of the outstanding rent, the three days for payment, and the alternative consequences. Actual service of this three day notice on respondent, not filing of an affidavit evidencing the service to complete the service requirements, gives the requisite notice for jurisdictional purposes. Fame Equities & Mgt. Co. v. Malcolm, N.Y.L.J., Oct. 28, 1996, at 27 (App. Term 1st Dep't); Jamal Estates v. Crockwell, 113 Misc 2d at 550-51; Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27; Eiler v. North, 121 Misc 2d at 542.

[23] III. APPLICATION OF THE FIVE DAY NOTICE TO CURE TO A NONPAYMENT PROCEEDING

[24] The parties' lease ¶ 17 sets forth what constitutes a default under the lease that will result in its termination if the specified procedure is followed. Subparagraph (c) permits petitioner to consider nonpayment of rent such an event. Metropolitan 919 3rd Ave. v. Clarke's Rest. Corp., 2001 NY Slip Op 50055, 2001 WL 1657200 (App. Term 1st Dep't Dec. 21, 2001); Swingtime, LLP v. White House (NY) Inc., N.Y.L.J., July 31, 2001, at 13 (App. Term 1st Dep't); Grand Liberte Coop. v. Bilhaud, 126 Misc 2d 961, 963 (App. Term 1st Dep't 1984). If petitioner elects this option, petitioner then must serve a notice allowing respondent five days to cure the nonpayment, after which, absent a cure, petitioner may terminate the lease. This standard amendment to leases for commercial premises, prohibited for residential premises, 61 E. 72nd St. Corp. v. Zimberg, 161 AD2d 542 (1st Dep't 1990); Park Summit Realty Corp. v. Frank, 107 Misc 2d 318, 323-24 (App. Term 1st Dep't 1980), aff'd, 84 AD2d 700 (1st Dep't 1981), aff'd, 56 NY2d 1025 (1982); 205 West End Owners Corp. v. Adler, N.Y.L.J., Apr. 2, 1990, at 21 (App. Term 1st Dep't), thus permits nonpayment of rent to be treated as a lease default triggering termination, "a conditional limitation so as to permit recovery of commercial premises in a holdover proceeding." Grand Liberte Coop. v. Bilhaud, 126 Misc 2d at 963. See Ranalli v. Burns, 157 AD2d 936, 937 (3d Dep't 1990); Metropolitan 919 3rd Ave. v. Clarke's Rest. Corp., 2001 WL 1657200; Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37 (App. Term 2d Dep't).

[25] Here, petitioner did not elect this option. Petitioner's choice to pursue a nonpayment proceeding under R.P.A.P.L. § 711(2) is in fact the very antithesis of declaring respondent's default and terminating the lease. Berkeley Associates Co. v. Gersten, N.Y.L.J., May 7, 1987, at 13 (App. Term 1st Dep't); Harris v. Timecraft Indus., 132 Misc 2d 386, 389 (Civ. Ct. NY Co. 1986); Ansonia Assoc. v. Pearlstein, 122 Misc 2d 566, 567 (Civ. Ct. NY Co. 1984); Northeast Bronx Hillside Corp. v. Deas, N.Y.L.J., July 15, 1992, at 24 (Civ. Ct. Bronx Co.). The nonpayment proceeding necessarily is premised on respondent being a tenant that has failed to pay rent under an unexpired rental agreement. Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389; Northeast Bronx Hillside Corp. v. Deas, N.Y.L.J., July 15, 1992, at 24.

[26] The petition in this proceeding recites that respondent is a "tenant . . . under a lease," Petition ¶ 2, and the monthly rent due under the parties' lease. The petition affirmatively admits the parties' landlord-tenant relationship, Ansonia Assoc. v. Pearlstein, 122 Misc 2d at 568, and thus reaffirms the lease and tenancy. Berkeley Associates Co. v. Gersten, N.Y.L.J., May 7, 1987, at 13; Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389; Ansonia Assoc. v. Pearlstein, 122 Misc 2d at 567, 569-70.

[27] Were petitioner declaring a lease default and terminating the rental agreement, petitioner would not allege a lease in effect and would be relegated to a holdover proceeding, where respondent would be holding possession of the previously rented premises over and beyond the lease's expiration, under R.P.A.P.L. § 711(1). Harris v. Timecraft Indus., 132 Misc 2d at 389. The holdover proceeding presupposes a terminated rental agreement, while the nonpayment proceeding presupposes a rental agreement that remains in effect. Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389.

[28] Thus, in this nonpayment proceeding, respondent has the all important right to honor the lease and pay any judgment for rent, to avert a warrant of eviction and keep the rental agreement in effect. Grand Liberte Coop. v. Bilhaud, 126 Misc 2d at 963. Had petitioner commenced a holdover proceeding, the court could not afford respondent any time after the five day notice period to cure the nonpayment of rent, and neither respondent nor the court could reaffirm or revive the terminated lease and tenancy. Id. at 964.

[29] IV. CONCLUSION

[30] In sum, because the petition evinces a nonpayment proceeding, not a holdover premised on an expired rental agreement, the commercial lease's notice to cure requirements do not apply to this proceeding. The rent demand fulfilled the predicate notice requirements. Because R.P.A.P.L. §§ 711(2) and 735(2) would be ineffective if § 735(2)'s filing requirements were applied to rent demands, the requirements for filing an affidavit of service do not apply to rent demands. Therefore the court denies respondent's motion to dismiss this proceeding. The parties shall appear for trial April 28, 2004, at 9:30 a.m., in Part 52. This decision constitutes the court's order.

[Aubergine]

Originally posted by Anna:
NO: LL cannot serve the petition until the time stated in the rent demand runs out, a minimum of three days by law, five days by some leases AND usually longer because the rent demand MUST include a 'date certain' at least 3 or 5 days from completion of service.

And if the decision in Frost Equities is correct, completion of service of a rent demand does not require filing of proof of service:

To apply the requirements for filing proof of service to rent demands would completely negate the requirements' effect. By definition, the "three days' notice" prohibits a landlord from commencing a nonpayment proceeding and filing its initial pleadings until more than three days after serving the demand. R.P.A.P.L. § 711(2). Thus compliance with R.P.A.P.L. § 711(2) would prohibit compliance with R.P.A.P.L. § 735(2)'s filing requirements if applied to rent demands. The only reasonable interpretation of R.P.A.P.L. §§ 711(2) and 735(2), therefore, is that the requirements for filing an affidavit of service do not apply to rent demands. Only this interpretation gives effect to both statutes.

Frost Equities, ¶ 15 (emphasis added, internal citations omitted).

To say that filing the initial pleading is prohibited until three days has elapsed after service makes sense, because the petition must allege default, and that allegation cannot be made until the three-day period has passed without payment or surrender.

So when is alternative service of a rent demand complete? On mailing -- despite the possibility of delay? 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?

<small>[ April 17, 2005, 06:17 PM: Message edited by: aubergine ]</small>

[NYHawk]

aubergine hit the nail on the head with the question: "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?" That is precisely my original point. I plan on litigating this issue in a non-pay case where the rent demand was mailed -- but if 5 days are added to the date of mailing then the rent demand was served one day short (7 days) . I'll report on the outcome of the case. (I still can't believe that no case can be located that has ever addressed this issue.)

<small>[ April 17, 2005, 06:25 PM: Message edited by: NYHawk ]</small>