New York Law Review

Tag: service by mail

  • Simon v. Usher, 17 N.Y.3d 625 (2011): Applying the Mailing Extension to Venue Change Motions

    Simon v. Usher, 17 N.Y.3d 625 (2011)

    CPLR 2103(b)(2)’s five-day extension for service by mail applies to the 15-day period prescribed by CPLR 511(b) for moving to change venue after a demand is served by mail, regardless of whether the motion is a direct response to papers served by the opposing party.

    Summary

    Plaintiffs brought a medical malpractice action in Bronx County. The Usher defendants served their answer and a demand to change venue to Westchester County by mail. Twenty days later, the Usher defendants moved to change venue. The Supreme Court granted the motion, but the Appellate Division reversed, holding the motion was untimely because it was made 20 days after service of the demand and CPLR 2103(b)(2)’s mailing extension did not apply to CPLR 511. The Court of Appeals reversed, holding that the five-day mailing extension applies to motions to change venue, answering the certified question in the negative.

    Facts

    Plaintiffs Allen and Barbara Simon commenced a medical malpractice action against defendants in Bronx County Supreme Court on July 17, 2009.

    On August 20, 2009, defendants Sol M. Usher, et al. (the Usher defendants) served their verified answers and demands to change venue to Westchester County by mail.

    Twenty days later, on September 9, 2009, the Usher defendants moved to change venue to Westchester County, arguing that most parties resided or had principal offices in Westchester County, and the relevant medical care occurred there.

    The remaining defendants served their answer on September 3rd and filed an affirmation supporting the motion to change venue on September 15th.

    Procedural History

    The Supreme Court granted the motion to change venue to Westchester County.

    The Appellate Division reversed, denying the motion as untimely because it was made 20 days after service of the demand, concluding that CPLR 2103(b)(2)’s five-day extension did not apply to CPLR 511.

    The Appellate Division granted the Usher defendants leave to appeal to the Court of Appeals and certified the question of whether the Appellate Division’s order was properly made.

    Issue(s)

    Whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail.

    Holding

    No, the order of the Appellate Division was not properly made. Yes, the five-day extension under CPLR 2103(b)(2) applies to the 15-day period prescribed by CPLR 511(b) because CPLR 2103(b)(2) contains no language restricting its application to instances where a party is directly responding to papers served by an adversary.

    Court’s Reasoning

    The Court of Appeals began by stating that when construing a statute, it must begin with the language of the statute and “give effect to its plain meaning.” The Court referenced CPLR 511(a), stating that a defendant shall serve a demand for change of venue with the answer, or prior to service of the answer, if the county designated for that purpose is not a proper county.

    The Court then cited CPLR 511(b), which permits a defendant to move to change venue within fifteen days after service of the demand, unless the plaintiff consents to the change within five days. CPLR 2103(b)(2) provides that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period.”

    The Court reasoned that the defendants, having served their motion papers by mail 20 days after serving their demand to change venue, were entitled to a five-day extension of the 15-day period prescribed in CPLR 511(b).

    The Court rejected the plaintiffs’ argument that the defendants could not rely on section 2103(b)(2) because the motion was not a direct response paper. The Court emphasized that Section 2103(b) contains no language restricting its application to instances where a party is responding to papers served by an adversary.

    The Court further explained that defendants are permitted to move to change venue only if plaintiffs do not consent in writing within five days after service of the demand, meaning the motion is effectively a response to plaintiffs’ lack of consent. The Court stated, “Simply put, defendants’ motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103 (b) (2)’s five-day extension.”

  • ATM One, L.L.C. v. Landaverde, 2 N.Y.3d 472 (2004): Calculating Cure Periods in Rent-Stabilized Leases When Serving by Mail

    ATM One, L.L.C. v. Landaverde, 2 N.Y.3d 472 (2004)

    When a landlord serves a notice to cure by mail in a rent-stabilized tenancy, the 10-day cure period is calculated by adding five days to the minimum cure period to account for mailing time, ensuring the tenant has the full 10 days to cure.

    Summary

    This case addresses how to calculate the 10-day cure period when a landlord serves a notice to cure by mail in a rent-stabilized housing accommodation. The landlord, ATM One, served the tenant, Landaverde, with a notice to cure an alleged lease violation, providing only nine days to cure. The tenant moved to dismiss, arguing she didn’t receive the mandated 10-day cure period. The Court of Appeals held that landlords who serve notices to cure by mail must add five days to the 10-day minimum cure period, effectively deeming service complete upon mailing while ensuring tenants receive the full cure period mandated by the Emergency Tenant Protection Regulations.

    Facts

    The tenant leased a rent-stabilized one-bedroom apartment from the landlord. On September 8, 2000, the landlord served the 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, setting a cure date of September 18, 2000. The tenant received the notice on September 9, 2000, providing only nine days to cure.

    Procedural History

    The landlord commenced a holdover proceeding against the tenant after the 30-day cancellation period expired. The tenant moved to dismiss, arguing she did not receive the required 10-day cure period. District Court dismissed the petition, borrowing from CPLR 2103 by requiring landlords to add five days for service by mail. Appellate Term affirmed, reasoning the purpose was to afford the tenant the full 10 days. The Appellate Division affirmed the dismissal, defining service in terms of receipt. The Court of Appeals granted the landlord leave to appeal.

    Issue(s)

    Whether, under the Division of Housing and Community Renewal’s Emergency Tenant Protection Regulations, the 10-day cure period is properly calculated from the date of mailing or the date of receipt of the notice to cure, when the notice is served by mail.

    Holding

    Yes, the 10-day cure period requires landlords serving by mail to add five days to the minimum cure period because this approach best effectuates the regulatory purpose of affording tenants a full 10-day cure period before lease termination.

    Court’s Reasoning

    The Court of Appeals emphasized that regulatory interpretation should align with legislative intent, examining the statute’s spirit and purpose. The Emergency Tenant Protection Act (ETPA) aimed to address housing shortages and prevent unjust rents. Because the regulations did not specify when service was complete for mailed notices, the Court looked to the underlying policies. The Court rejected the landlord’s argument that service was complete upon mailing, as this was inconsistent with providing tenants a 10-day opportunity to cure. It also rejected deeming service complete upon receipt because this would make it impossible for landlords to reliably compute the date certain. The court adopted District Court’s approach, holding that owners who serve by mail must add five days to the 10-day minimum cure period, consistent with CPLR 2103(b)(2). This ensures tenants receive the full 10-day cure period, balancing the need for efficient resolution of lease violations with the ETPA’s purpose. The Court stated, “[W]e 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.” By requiring the additional five days, the Court ensured that tenants are not disadvantaged by the landlord’s choice of service method. A properly executed affidavit of service creates a presumption of proper mailing, rebuttable only by more than a denial of receipt. The Court encouraged DHCR to amend its regulations for clarity.