ATM ONE v. Landaverde

• Decision Date: 03 June 2004
• Citation: 812 N.E.2d 298,779 N.Y.S.2d 808,2 N.Y.3d 472
• Parties: In the Matter of ATM ONE, LLC, Appellant, v. ANA LANDAVERDE, Respondent.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 472

812 N.E.2d 298

779 N.Y.S.2d 808

In the Matter of ATM ONE, LLC, Appellant, v. ANA LANDAVERDE, Respondent.

Court of Appeals of the State of New York.

Argued April 29, 2004.

Decided June 3, 2004.

Wolfson & Grossman, Westbury (Paula Schwartz Frome of counsel), for appellant.

Community Legal Assistance Corp., Hempstead (Stefan H. Krieger of counsel), for respondent.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

OPINION OF THE COURT

GRAFFEO, J.

In this appeal, the owner of a building challenges the dismissal of its holdover proceeding against a tenant allegedly violating the maximum occupancy provision of the parties' lease. We conclude that the proceeding was properly dismissed because the tenant was not afforded 10 days written notice to cure the alleged violation.

Section 2504.1 of the Division of Housing and Community Renewal's Emergency Tenant Protection Regulations sets forth restrictions regarding the removal of a tenant in a rent-stabilized housing accommodation. Prior to commencing a proceeding to recover possession based on a tenant's wrongful act, an owner must give the tenant written notice to cure (9 NYCRR 2504.1 [d] [1] [i]). The notice must state the wrongful acts of the tenant, the facts necessary to establish such acts and "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" (id. subcl [c] [emphasis added]). A proceeding may not be maintained if the tenant cures the specified wrongful act "by or before the date specified" (§ 2504.1 [d] [1] [ii]). At the time relevant to this appeal, the regulations also provided that

"[n]otices, orders, protests, answers and other papers may be served personally or by mail. When service is made personally or by mail, an affidavit by the person making the service or mailing shall constitute sufficient proof of service. When service is by registered or certified mail, the return post office receipt shall constitute sufficient proof of service" (9 NYCRR 2508.1 [a]).¹

Respondent tenant leases a one-bedroom apartment in Freeport, New York from petitioner owner. On September 8, 2000, owner served tenant with a "Notice of Default; Ten Days' Notice to Cure; Thirty Days' Notice of Cancellation," alleging overcrowding in violation of the lease. The notice was sent by certified and regular mail on September 8, 2000, and set a "date certain" of September 18, 2000 for cure. It is undisputed that tenant received the notice on September 9, 2000, thus affording her only nine days to cure.

After expiration of the 30-day cancellation period, owner commenced this holdover proceeding against tenant. Tenant moved to dismiss the petition on the basis that she did not receive the mandated 10-day opportunity to cure. Owner opposed the motion, arguing that the 10-day period commenced upon mailing of the notice on September 8 and that tenant therefore received the requisite time to cure.

District Court dismissed the petition. In order to address the failure of the regulations to define when a mailed notice to cure shall be deemed served, the court "borrow[ed] the concept embodied in" CPLR 2103 by requiring owners to add five days to the prescribed period when serving by mail. Upon granting reargument, District Court adhered to its determination. Appellate Term affirmed. Although it agreed with District Court's rationale "that the regulatory purpose was to afford a tenant the full 10 days prescribed in which to cure a breach," the court rejected the addition of five days for service by mail in favor of a rule that service is complete upon delivery (190 Misc 2d 76, 77 [2001]). Owner appealed.

The Appellate Division also affirmed the dismissal of owner's petition. The Court defined service under the regulations "in terms of receipt rather than in terms of mailing" to effectuate the underlying policies and avoid "the possibility that, in a case involving an abnormally extended delay in the delivery of the mail, a tenant might not be told of the date within which he or she may cure a violation until after that date has actually passed" (307 AD2d 922, 923, 924 [2d Dept 2003]). Two Justices dissented and voted to reinstate the petition. The dissenting Justices viewed the plain meaning of the regulations as establishing that "the date of service is the date [the notice] was mailed as evidenced by a contemporaneous affidavit of service" and expressed concern that the Court's holding rendered the provision permitting service by mail ineffective because the owner "will never be able to know when the notice is actually received" (id. at 925). The Appellate Division granted owner leave to appeal to this Court.

Owner urges that, under the plain meaning of the regulations, service of the notice to cure was complete on September 8, the date the notice was mailed. Owner thus contends that the notice's September 18 date certain complied with the regulations, notwithstanding that once tenant received the notice she had only nine days to rectify her alleged lease violation. In contrast, tenant asserts that because the regulations are silent with respect to when service of a mailed notice to cure is deemed complete, the courts below properly looked to the policies and intent underlying the regulations to resolve the issue. In light of these considerations, tenant argues that the regulation entitles her to the full 10-day cure period before a holdover proceeding may be maintained and that this Court should adopt District Court's approach and require owners who mail notices to add five days when calculating the date certain by which tenants must cure. We agree with tenant and therefore affirm.

In matters of statutory and regulatory interpretation, we have repeatedly recognized that

"legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" (Mowczan v Bacon, 92 NY2d 281, 285 [1998] [internal quotation marks and citations omitted]; see Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

We are further guided by the tenet that regulations — like statutes — should be construed to avoid objectionable results (see People v Dozier, 78 NY2d 242, 250 [1991]; McKinney's Cons Laws of NY, Book 1, Statutes § 141; see also 2 NY Jur...