NYLJ618202457150Lambert

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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

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