Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/Notice of Motion and Affidavits / Affirmations annexed NYSCEF 38-40 Answering Affidavits/ Affirmations NYSCEF 41 Reply Affidavits / Affirmations Memoranda of Law Other Decision / Order Respondent moves to dismiss this nonpayment proceeding pursuant to CPLR §3211(a)(7), arguing that the petitioner failed to afford respondent fourteen days’ notice in the rent demand as required by RPAPL §711(2). The court grants respondent’s motion. Respondent herein argues that the court should apply the principles set forth in ATM Once, Lc v. Landaverde (2 N.Y.3d 472 [2004]) to rent demands that are served via conspicuous place service. In Landaverde a landlord, believing that a tenant’s rent stabilized apartment was overcrowded, served that tenant with a notice to cure as required by Section 2504.2(d) of the Rent Stabilization Code (“RSC”). The notice to cure was sent by certified and regular mail. The tenant moved for dismissal in the subsequent holdover proceeding, arguing that they had not received the full ten-day notice required under the RSC. The merit of this defense turned upon when service of the notice is deemed complete. The RSC itself is silent as to when service of such a notice can be deemed complete, so the Court turned to the legislative intent of the statute. Noting that the RSC required notices to cure in hope that tenants could take preventative action to avoid suit, the Court of Appeals borrowed from the standard set forth in CPLR §2103(b)(2) and held that owners who elect to serve notices to cure by mail must by add five days to the ten-day notice period and that service will be deemed to be completed upon mailing. Id at 477-78. Respondent herein argues that this court should apply the same rationale employed by the Landaverde court to the rent demand served upon her via conspicuous place service. A fourteen-day rent demand was affixed to her door and mailed to her on May 10, 2022, and required she pay the arrears owed by May 25, 2024. Respondent argues that, even though more than fourteen days of notice was given, it was insufficient time as a matter of law because petitioner should have added five days to the notice period because the demand was served by conspicuous place service. Like the statute analyzed in Landaverde, RPAPL §711(2) (which mandates the service rent demands) is silent as to when the service of such demands is complete. Moreover, even if the court were to incorporate the service provisions of RPAPL §735 to the service of the rent demand, those portions of RPAPL §735 detailing completion of service would not make sense if applied to rent demands. RPAPL §735 dictates that conspicuous place service is only completed upon filing of the proof of service. There is no action pending at the time a rent demand is served, so there would be no way for a landlord to complete service if this was the standard used. The respondent argues that, like the Landaverde Court, this court should incorporate the service provisions found in CPLR §2103(b)(2), thereby finding that service was complete at the time the notice was mailed, but that an additional five days of notice must be calculated into the notice time. Petitioner, in opposition, does not discuss Landaverde or any case contrary to Landaverde that this court should follow. Instead, as best the court can discern, petitioner contends that the motion should be denied because respondent is raising a factual argument that would be inappropriate to be decided within the context of a CPLR §3211(a)(7) motion. According to the petitioner, the court is required to find the contents of the process server’s affidavit true and, since the statute requires fourteen days’ notice, “[a] cause of action is clearly stated and as a result thereof, the motion should be denied.” (Opp. At 9, NYSCEF 41.) Petitioner’s argument does not hold water. The question before the court is not whether the rent demand was properly served, but instead whether the notice period given in that notice was sufficient as a matter of law. As such, the respondent is not questioning the veracity of the affidavit of service, but is instead arguing that, even when giving the petitioner every favorable inference, the petition fails because the respondent was not given adequate notice. This is proper grounds for a CPLR §3211(a)(7) motion, as it alleges that the rent demand is defective. King Thorn LLC v. Walters, 64 Misc.3d 1212[A] at * 4 [Civ. Ct. Bronx County 2019]. Indeed, Landaverde itself was decided in the basis of a CPLR 3211(a)(7) motion. Respondent has presented a cogent legal argument. Petitioner has failed to address the crux of that argument, and the argument presented in opposition does not hold water. As such the court finds in favor of the respondent and dismisses the petition. ORDERED: Respondent’s motion is GRANTED. The petition is DISMISSED This is the decision and order of the court, which will be delivered to the parties via posting on NYSCEF. Dated: May 20, 2024
