In the Matter of ATM One, LLC,
Appellant,
v.
Ana Landaverde,
Respondent.
2004 NY Int. 81
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
"[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
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 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
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 citations and quoted cases omitted]; see 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 2d, Admin Law § 184 [administrative regulations generally subject to same canons of construction as statutes]).
DHCR adopted the regulations at issue in this case
pursuant to its powers under the Emergency Tenant Protection Act
of 1974 (ETPA) ( see 9 NYCRR 2500.1). The Legislature enacted the
ETPA to address the "serious public emergency" in housing across
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. Reading the
service provision (9 NYCRR 2508.1 [a]) together with the notice
to cure regulation (9 NYCRR 2504.1 [d]), we conclude that
District Court's approach best effectuates the regulatory purpose
to afford tenants a 10-day cure period before they may be subject
to lease termination for designated violations. We therefore
hold that owners who elect to serve by mail must compute the date
certain by adding five days to the 10-day minimum cure period
( see e.g. CPLR 2103 [b][2]). In this manner, service will be
deemed complete upon mailing, and a properly executed affidavit
of service will raise a presumption that proper mailing occurred
The rule advocated by owner -- which would define the
act of mailing as completion of service and permit owners to
calculate the "date certain" from that starting point -- is
inconsistent with regulatory purpose to provide tenants a 10-day
opportunity to cure and would lead to unpredictable results. The
Appellate Division and Appellate Term rule, deeming service
complete upon a tenant's receipt of the notice, is similarly
flawed because an owner could not reliably compute and insert the
date certain on the notice as required by the regulations.
Instead, the rule we adopt balances the need for orderly and
efficient resolution of lease violations with the stated
Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.
Footnotes
1 The regulation was subsequently amended to permit electronic service, among other changes.
2 Indeed, the amended version of section 2508.1 (a) expressly provides that "[o]nce sufficient proof of service has been submitted to the division, the burden of proving nonreceipt shall be on the party denying receipt."