2215-75 CRUGER APTS v. Stovel
Citation | 196 Misc.2d 346,769 N.Y.S.2d 347 |
Parties | 2215-75 CRUGER APARTMENTS, INC., Respondent,<BR>v.<BR>PAUL STOVEL, Appellant, et al., Respondents. |
Decision Date | 22 July 2003 |
Court | United States State Supreme Court (New York) |
Altman & Altman, Bronx (Joseph A. Altman of counsel), for appellant.
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers (Lawrence Schiro of counsel), for respondent.
Final judgment entered February 1, 2002 reversed, with $30 costs, and final judgment granted in favor of tenant dismissing the holdover petition.
The dispositive issue on this appeal is whether service of a 10-day notice to cure which gave tenant less than 10 days to cure an illegal sublet was a sufficient predicate notice to permit landlord to terminate the tenancy and commence a holdover summary proceeding. We find that it was not; that the tenancy was not properly terminated; that the lease remains in effect; and, accordingly, that the judgment should be reversed and the petition dismissed.
Except in circumstances where a cure is impossible (see, e.g., 326-330 E. 35th St. Assoc. v Sofizade, 191 Misc 2d 329 [App Term, 1st Dept 2002]), where a landlord fails to serve a requisite notice to cure, the lease remains in effect and the tenancy cannot be terminated (Grenadeir Parking Corp. v Landmark Assoc., 283 AD2d 379, 380 [2001]). Landlord's failure to serve the notice to cure at least 10 days prior to the date listed for a cure is fatal to the summary proceeding. (See, ATM One v Landaverde, 190 Misc 2d 76 [App Term, 2d Dept 2001].)
Tenant, who was without an attorney at the time he answered and at trial, made the following statement in his answer:
that date being at least ten (10) days from the date of this notice.' By the petitioner's own admission in his affidavit†(Emphasis in original.)
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