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he law abhors a forfeiture. Where a

landlord invokes a lease provision enti-

tling it to unilaterally prematurely end

the term of the lease unless the tenant

cures an alleged lease default within

a prescribed time, the notice by which such right

is exercised, referred to as a “notice of default” or

“notice to cure,” will be strictly construed against the

landlord. Lake Anne Realty Corp. v. Sibley, 154 A.D.2d

349, 545 N.Y.S.2d 828 (2d Dept. 1989).

The substantive requirements for such a notice

were set forth by the Court of Appeals in Chinatown

Apartments, Inc. v. Lam, 51 N.Y.2d 786, 433 N.Y.S.2d

86 (1980). In Chinatown, the controlling precedent

since 1980, the Court of Appeals held that the

notice must (i) specifically describe the facts

alleged to constitute the default and (ii) cite the

specific provisions of the lease allegedly violated.

The notice must meet those requirements to place

the tenant in a position to cure and thereby avoid

forfeiture of its leasehold estate.

As stated by the Appellate Division, First Depart-

ment in Filmtrucks, Inc. v. Express Indus. & Term.

Corp., 127 AD2d 509, 511 N.Y.S.2d 862 (1st Dept.

1987) “[t]he purpose of a notice to cure is to

specifically apprise the tenant of claimed defaults in

its obligations under the lease and of the forfeiture

and termination of the lease if the claimed default

is not cured within a set period of time.”

However, some subsequent cases, including a 2009

Decision of the Appellate Division, Second Depart-

ment, contain language suggesting that a notice of

default must go further. These decisions state that

the notice must inform the tenant of “the conduct

required to prevent eviction” and “how the [tenant]

could cure the alleged violations.”

By Thomas C. Lambert and Steven Shackman

June 14, 2024

Must a Notice of Default Instruct the Tenant

‘How To Cure?’ Reconciling a Dichotomy

Under the Case Law

Thomas C. Lambert of Lambert

& Shackman.

Steven Shackman of Lambert

& Shackman.

Courtesy photos

June 14, 2024

Over the years, more and more lower court deci-

sions have included these phrases, citing cases

which came before. And yet, until recently, none of

these cases involved an issue of whether the notice

should have instructed the tenant on “how to cure.”

Rather, it seems that the language was simply carried

over, from earlier decisions, in the courts’ respective

descriptions of the rule under the Chinatown case.

And now, nearly 20 years after the phrase first

appeared in a published decision, courts recently

have cited this language—we believe incorrectly—in

dismissing cases where the notice otherwise meets

the Chinatown test on the grounds that the notice

failed to provide the tenant with specific instructions

on how to cure.

This is an example of how a seemingly innocuous

phrase added to a court’s decision may ultimately be

picked up and perpetuated in subsequent decisions,

cascading over time as it is repeated, until it is even-

tually cited for a proposition it was apparently never

intended to support.

The suggestion that a notice to cure must describe

“the conduct required to prevent eviction” presents a

dichotomy. When viewed in a vacuum it can be read

to require that the notice must provide the tenant with

“instructions” on how to cure.

On the other hand, in keeping with the underlying

doctrine “the law abhors a forfeiture” and the simple

test for sufficiency of the notice under Chinatown,

it is not the entitlement of a landlord to require a

tenant to cure in a particular way, chosen by the

landlord. Rather, it is the tenant’s right to cure its

default in a manner of its choosing. So long as the

default is cured in a timely and legally permissible

manner, at the tenant’s expense, the landlord has no

cause to complain.

At first blush, adding to the Chinatown test a

requirement that the notice instruct the tenant “how

to cure” might be viewed as a boon to tenants,

because it imposes upon the landlord, as the drafter

of the notice, an additional prerequisite to the notice’s

effectiveness. But in fact, such a requirement would

substantially diminish the tenant’s rights. Where there

is more than one possible way to cure, the landlord

could insist in the notice upon the most onerous or

most expensive way. That would be inconsistent with

the underlying doctrine “the law abhors a forfeiture.”

To reconcile the case law, it is helpful to look back

to the leading Chinatown case issued by the Court of

Appeals in 1980 and review the subsequent decisions

in which this “how to cure” language appears.

In Chinatown, the notice of default alleged that that

in violation of the lease the tenant had erected a “par-

tition” in the premises. The Court of Appeals found

that the notice was defective in two respects. First,

what the tenant had built was not a “partition” but

rather a “freestanding, cube-like structure.” Second,

the notice failed to cite any specific prohibition in the

lease against the tenant’s alleged conduct.

The court held that the tenant “could not be expected

to take remedial action by removing the ‘cube’ unless

his landlord first demonstrated that such remedial

action was required by the lease.”

The notice was fatally defective because it failed to

specifically apprise the tenant of the facts comprising

Credit: Adobe Stock

June 14, 2024

the alleged default, and the governing law, that is, the

clause of the lease allegedly violated. Because the

notice failed to specify the offending facts and the

governing lease clauses, it failed to put the tenant in

a position to cure.

Between 1980 and 2005, Chinatown was cited as

controlling precedent in numerous cases. The first

appearance of the phrase “the conduct required to

prevent eviction” in the context of a notice of default

litigation seems to be the 2005 case 200 West 58th

Street LLC v. Little Egypt Corp., 7 Misc.3d 1017(A),

801 N.Y.S.2d 243 (Civ. Ct. N.Y. Co. 2005).

In Little Egypt, the notice of default alleged that

the tenant, the operator of a retail store, was sell-

ing merchandise in competition with other tenants

at substantially lower prices. However, the notice

did not identify the other tenants or the offending

merchandise.

The court found that based on the notice the tenant

“knows neither what the competing merchandise is,

nor whether to cease selling the offending merchan-

dise or sell it at a raised price to avoid eviction.”

Because the notice failed to specifically describe

the facts alleged to constitute the default, it failed the

Chinatown test. Citing Chinatown, the Court stated

“[t]he notice to cure must inform the tenant unequivo-

cally and unambiguously how it has violated the

lease and the conduct required to prevent eviction.”

[emphasis added].

The phrase “the conduct required to prevent evic-

tion” might seem to indicate that the Court found the

notice to be defective because it did not instruct the

tenant on “what to do,” which goes further than the

controlling precedent of Chinatown.

However, the facts of Little Egypt belie that conclu-

sion. The notice was defective because it “fail[ed] to

identify the co-tenants or the merchandise respon-

dent sold that competed with those tenants.” The

notice asserted that the tenant was blocking access

to “other stores” but failed to identify those stores.

Without allegation of those facts, the tenant was not

placed in a position to cure.

The court went on to state “[T]hese omit-

ted but necessary facts are key to determining

the reasonableness of the notice under the

circumstances.” [emphasis added].

While the Decision states that the tenant “knows

neither … whether to cease selling…or sell it at a

raised price…,” the problem with the notice was not

that it failed to instruct the tenant which of those two

courses of action to follow. Either would have worked.

The problem with the notice, rather, was the “omitted

but necessary facts… .” Without the specification of

the offending facts, the tenant was not placed in a

position to cure, by a means of its choosing.

In characterizing the defect as the failure to

apprise the tenant of “conduct required to cure,”

the court was really explaining the reason for the

rule that the facts comprising the default must be

described in the notice.

Four years after Little Egypt, the phrase appeared

in a 2009 case decided by the Appellate Division,

Second Department. Westhampton Cabins & Cabanas

Owners Corp. v. Westhampton Bath & Tennis Club

Owners Corp., 62 A.D.3d 987, 882 N.Y.S.2d 124 (2d

Dept. 2009). Westhampton was a case in which there

could be no confusion about “the conduct required

to prevent eviction”, because it concerned an alleged

default in the payment of rent. There is only one

possible way to cure such a default—payment.

The Second Department sustained the notice of

default, finding that it specified the applicable lease

clauses and the amounts of unpaid rent, and pro-

vided the date by which said amount could be paid by

the tenant to avoid termination.

Nevertheless, in describing the test for suf-

ficiency of a notice of default, the court stated,

mirroring the language of Little Egypt, that a notice

June 14, 2024

of default must inform the tenant of “the conduct

required to prevent eviction.”

Thereafter, this language was picked up and quoted

in several lower court decisions, each of which cited

Westhampton.

In those cases, there was no issue as to whether

the notice instructed the tenant how to cure. For

example, in Shore Lane Arms Owners Corp. v. Mazza,

26 Misc.3d 1222(A), 907 N.Y.S.2d 441 (Civ. Ct. Kings

Co. 2010), and First Hous. Co., Inc. v. Orozco, 2019

N.Y. Misc. Lexis 4216, 2019 Slip Op. 51224(U)(Civ.

Ct. Queens Co. 2019) the notices alleged that the ten-

ants engaged in prohibited subletting.

In S&M Bronx Inc. v. Mosholu Petrol Realty LLC,

3022 NYLJ Lexis 134 (Sup. Ct. Bx. Co. 2022) the

notice alleged that the tenant had failed to obtain

required insurance.

In BP 510 Madison LLC v. Prosiris Capital Mgt. LLC,

65 Misc. 3d 1222(A), 119 N.Y.S.3d 393 (Civ. Ct. N.Y.

Co. 2019) the notice alleged that the tenant had failed

to pay rent.

In those cases, the tenants did not need instructions

on how to cure, it was self-evident. And yet, in each

of these decisions, the courts cited Westhampton

for the proposition that the notice must apprise the

tenant of “the conduct required to prevent eviction.”

Similarly, in Zagorski v. Koenigsamen, 2019 N.Y.

Misc. Lexis 4087 (Civ. Ct. Kings. Co. 2019) the Court

dismissed a holdover proceeding where the notice

of default was “replete with generalizations”, failed to

“alleg[e] with specificity the conduct of which it com-

plains” and “nowhere designated the provisions of the

lease under which it is being issued.” That is an apt

re-statement of the Court of Appeals’ straightforward

Chinatown test. And yet, citing Westhampton, the Court

went on to state that a notice to cure must inform the

tenant of “the conduct required to prevent eviction.”

This contrast between the straightforward China-

town test and the supposed additional requirement

that the notice “instruct” the tenant how to cure has

come to a head in recent lower court cases.

In 985 Bruckner Blv. Owners LLC v. Fuentes, 2022

N.Y. Misc. Lexis 6195, 2022 NY Slip Op. 51054(U)

(Civ Ct. Bx. Co. 2022), the notice of default con-

tained eight numbered paragraphs specifying

alleged objectionable conduct. The tenant moved to

dismiss on the grounds “that the notice to cure does

not advise what must be done to cure the alleged

breach/conduct.”

The court rejected that argument, holding “A cure

occurs when the specified conduct stops.” It recog-

nized, we would say correctly, that where the notice

specifies the facts constituting the alleged default,

that specification of the facts places the tenant in a

position to cure. See also Riverbay Corp. v. Frere, 2022

N.Y. Misc. Lexis 6195, 2022 NY Slip Op. 51054(U)(Civ

Ct. Bx. Co. 2022) (“A cure occurs when the specified

violations cease.”)

However, in 2150 Creston Ave, LLC v. Marte, 2023

N.Y. Misc. Lexis 2590, 2023 NY Slip Op. 31752(U)

(Civ. Ct. Bx. Co. 2023), the court came to the opposite

conclusion. The notice in that case alleged that the

tenant breached the lease by having built a wall in

a specified area of the apartment, thereby creating

an additional room, resulting in the NYC Dept. of

Housing Preservation and Development issuing a

violation against the landlord.

The tenant moved to dismiss, arguing that the

notice failed to apprise her of “what she must do

to cure the alleged breach.” The landlord argued

that the remedy was “whatever is necessary to cor-

rect the violation.” Citing Westhampton, the court

dismissed the case, holding that a notice to cure

“must be sufficiently specific in stating what the

tenant must do to remedy the alleged breach ….

By not including a specific statement as to what

respondent was required to do … the notice to cure

is unacceptably vague and confusing….”

June 14, 2024

In CUCS W.127th St. LLC v. E.E., 80 Misc.3d 995,

193 N.Y.S.3d 909 (Civ. Ct. N.Y. Co. 2023) the notice

alleged that the residential tenant breached the lease

by keeping the apartment in an excessively cluttered

state, resulting (as in the 2150 case) in the NYC

Dept. of Housing Preservation and Development

issuing a violation against the landlord. The tenant

argued that a notice of default “must inform a tenant

of what actions the tenant must take to cure the

alleged breach.”

The landlord argued that a notice of default must

“specify the conduct the tenant needs to correct;

and … inform the tenant of specific lease provisions

that prohibit the alleged conduct.” In other words,

the landlord argued that meeting the elements set

forth by the Court of Appeals in Chinatown was suf-

ficient; and the tenant argued that the notice must

also instruct the tenant on the actions the tenant

needs to take.

The court agreed with the tenant. Citing West-

hampton and Shore Lane, supra., it dismissed the

case, holding that the landlord “was obligated to

state in the notice to cure how respondent was to

cure the alleged breaches of her lease….” Arguably

the CUCS case is limited by its circumstances; the

landlord was a “provider of supportive housing” and

was aware of the tenant’s psychological issues,

and the court held that specific instructions on how

to cure were required to render the notice reason-

able “under the circumstances.”

In our view that was incorrect. Even under those

unusual circumstances, meeting the Chinatown

test is sufficient. Where the notice apprises the

tenant of specific offending facts, the tenant has

been informed of how to cure: get rid of those

specific offending facts. Where there is more than

one possible way to do so, it’s up to the tenant; the

landlord is not entitled to insist upon a particular

method, either by “providing instructions” or

otherwise.

For example, what if the landlord’s notice in CUCS

had instructed the tenant to cure by hiring a specific

cleaning company designated by the landlord and

temporarily vacating her apartment for three days

while the cleaning company does its work? That

would have met the court’s requirement to “state in

the notice to cure how respondent was to cure the

alleged breaches of her lease.” But it would also

have imposed on the tenant an onerous and expen-

sive requirement.

How then to reconcile the simple rule under Chi-

natown and the phrases in later cases “the conduct

required to prevent eviction” and “how the [tenant]

could cure the alleged violations”?

The reconciliation is that the phrase, which first

appeared in Little Egypt and was then perpetuated

in Westhampton and other cases, was not intended

in those cases to be an expansion of the rule in

Chinatown. It is in fact the simple, unexpanded Chi-

natown rule which yielded the result in those cases.

Where the notice sets forth the specific allegedly

offending facts together with the specific provision

of the lease allegedly violated by those facts, then

the self-evident task at hand for the tenant is to

remove the offending facts; how the tenant elects

to do so is up to the tenant.

Thomas C. Lambert and Steven Shackman are

partners at Lambert & Shackman.

prohibited, contact 877-256-2472 or reprints@alm.com. # NYLJ-6182024-57150

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