QN St. Albans Holdings LLC v. Sands, 2024 NY Slip Op 24252 (2024)

In Cisarano, the Appellate Term reviewed the legislative history surrounding the amendment in 005 of CCA § 400 resulting in a shift from a commencement by service to a commencement by filing system and concluded that the legislature intended it to apply to [*3]summary proceedings (id. at 24). Despite this change, the Cisarano court held that commencement should remain tied to service for purposes of the common law rule of vitiation, whereby a landlord reinstates a tenancy and renders defective a predicate termination notice by accepting rent prior to litigation. While RPAPL 711(1), the statute creating the grounds for a holdover proceeding against a tenant, offers a petitioner safe harbor from vitiation for use and occupancy payments accepted pendente lite, it only applies to funds tendered after the commencement of a summary proceeding. In concluding that commencement should remain based on service rather than filing in this context, the Appellate Term reasoned that the legislative purpose of RPAPL 711(1) is "to allow the tenant to pay and the landlord to accept rent after the commencement of the proceeding without prejudicing their respective positions," which can only occur once both sides are on notice of the proceeding, namely after service of the initiating papers (Cisarano at 26).