Judge Scott Fairgrieve
Wells Fargo sued DiFranco for a final judgment of eviction, awarding it possession of the subject premises in this holdover action. A judgment of foreclosure and sale against DiFranco was previously granted. He now moved for dismissal of the petition as fatally and procedurally defective, arguing the action was premature as the petition was filed before his occupancy expired. DiFranco claimed his occupancy did not expire until Nov. 11, 2011, as the 10-day notice to quit was mailed on Oct. 27 and the CPLR required a five day “lag time” for mailing. The court stated the Matter of ATM One v. Landaverde rule, generally meant to be confined to a 10-day cure notice, should not be extended to the notice here. It noted while DiFranco challenged the sufficiency of the mailing of the 10-day notice to quit, he did not deny receiving it. Further, DiFranco argued the petition was defective as Wells Fargo obtained title under a referee’s deed on May 31, 2011, but it was notarized July 25. The court stated absent evidence to the contrary, the date the deed was signed was presumed to be the date of delivery, and DiFranco did not submit any evidence to rebut this presumption, denying DiFranco’s motion to dismiss entirely.