NOW YOU DON'T HAVE TO GIVE 'EM FIVE?

As we anticipated several weeks ago, the Appellate Term, First Department, has issued a decision which concludes that an additional five days need NOT be added to "Golub" or "window-period" notices served by regular mail.
Ninety (90) to one hundred and fifty (150) days prior to the expiration of a rent-stabilized lease, a landlord is required to serve a "Golub" notice on the tenant, advising the recipient of the reason the lease is not being renewed. (The grounds for refusing to issue a renewal lease include, but are not limited to, "owner's use" and a tenant's "non-primary residence.")
When the Court of Appeals issued its decision in ATM v. Landaverde--a case which involved a notice to cure served by mail upon a tenant protected by the Emergency Tenant Protection Act and Emergency Tenant Protection Regulations--the state's highest court concluded that an additional five days should have been added to the notice (in order to allow the tenant a full and complete cure period). Notwithstanding the limited nature of that holding, a number of judges expanded the application of ATM to all kinds of predicate notices issued prior to the start of a summary proceeding.
In a decision released yesterday in Skyview Holdings, LLC v. Cunningham, the Appellate Term, First Department, determined that ATM does not apply to notices which do not require corrective action by a tenant. As the appellate court observed:

Unlike a 10-day notice to cure, a 90/150 day notice of nonrenewal does not require a tenant to undertake an affirmative act within narrow time constraints, but instead merely calls upon a tenant to elect whether to contest the merits of a landlord's possessory claim following a lease termination date set months in advance or to vacate the demised premises in the interim. Thus, unlike a tenant who potentially may be deprived of the full benefit of the mandated 10-day cure period by a landlord's mailing of a notice to cure, a tenant who is served by mail with a nonrenewal notice within the 90/150 day period prescribed by the Code--even a notice whose delivery is unusually delayed--cannot reasonably be said to be "disadvantaged by an owner's choice of service method"...Nor are we aware of any "unpredictable results"...that potentially may be caused by a tenant's delayed receipt of a properly mailed 90/150 day notice of nonrenewal. In sum, neither a textual analysis of the Landaverde opinion nor an examination of the policy concerns raised in the context of that breach of lease proceeding requires us to extend the "10 plus 5" rule adopted therein so as to invalidate the otherwise timely served notice of nonrenewal underlying this nonprimary residence proceeding.