ATM ONE v. Landaverde

• Decision Date: 26 October 2001
• Citation: 736 N.Y.S.2d 833,190 Misc.2d 76
• Parties: ATM ONE, L. L. C., Appellant,<BR>v.<BR>ANA LANDAVERDE, Respondent.
• Court: New York Supreme Court

190 Misc.2d 76
736 N.Y.S.2d 833

ATM ONE, L. L. C., Appellant,
v.
ANA LANDAVERDE, Respondent.

October 26, 2001.

Wolfson & Grossman, Westbury (Mary T. Lucere of counsel), for appellant.

Community Legal Assistance Corp., Hempstead (Gina Calabrese of counsel), for respondent.

FLOYD, P. J., DOYLE and WINICK, JJ., concur.

[190 Misc.2d 77]

OPINION OF THE COURT

MEMORANDUM.

On the court's own motion, appeals consolidated for disposition.

Appeal from order dated November 30, 2000 unanimously dismissed. Said order was superseded by the order of March 1, 2001.

Order dated March 1, 2001 unanimously affirmed without costs.

We disagree with the District Court insofar as it applied CPLR 2103 (b) (2), which adds 5 days when service is by mail to certain prescribed periods, to the 10-day period prescribed by Emergency Tenant Protection Regulations (9 NYCRR) § 2504.1 (d) (1) for service of a notice to cure. CPLR 2103 (b) (2) applies only to "papers to be served * * * in a pending action," and, therefore, by its terms, is inapplicable to a notice to cure, which is served before the commencement of a proceeding (Trustees of Columbia Univ. v Bruncati, 77 Misc 2d 547, affd without opn 46 AD2d 743; see, Matter of Fiedelman v New York State Dept. of Health, 58 NY2d 80). We agree with the District Court, however, insofar as it understood...