567 W. 125th St. Realty, LLC v VJRJ Rests. LLC

[*1] 567 W. 125th St. Realty, LLC v VJRJ Rests. LLC 2015 NY Slip Op 50287(U) Decided on March 9, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570738/14

567 West 125th Street Realty, LLC, Petitioner-Landlord-Appellant, -

against

VJRJ Restaurants LLC d/b/a Checkers, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), dated July 16, 2014, which granted tenant's motion to stay execution of a warrant of eviction in a nonpayment summary proceeding.

Per Curiam.

Order (Jennifer G. Schecter, J.), dated July 16, 2014, reversed, without costs, and tenant's motion denied. Execution of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Pursuant to the terms of an April 2014 so-ordered stipulation settling this commercial nonpayment summary proceeding, petitioner-landlord was awarded a possessory judgment and a recovery of rent arrears in the amount of $21,039.75. The stipulation, which recited that it was the product of "extensive negotiations" between the parties, provided for the warrant of eviction to issue "forthwith," with execution of the warrant stayed on condition that the corporate tenant complied with a specified "time of the essence" payment schedule. The stipulation authorized landlord to execute on the warrant in the event that tenant failed to make any payment and such failure continued after service of a three-day cure notice.

Tenant failed to timely make several payments due under the stipulation, but was able to cure its initial defaults within the three-day cure period. However, tenant subsequently failed to timely tender the June 2014 rent (due June 15), as well as a required installment payment covering rent arrears (due June 30), and failed to cure said defaults within the three-day cure period. The July 16, 2014 order here under review granted tenant's application to stay execution of the warrant on condition that tenant tender all arrears, together with July 2014 rent, by July 26, 2014.

Landlord appeals, and we reverse. "Strict enforcement of the parties' stipulation ... is warranted based upon the principle that parties to a civil dispute are free to chart their own litigation course" (Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 [1996]). Tenant offered no valid excuse for its demonstrated failure to comply with the unambiguous "time of the essence" payment provisions of the stipulation to which it assented upon advice of counsel, alleging only [*2]that it was "in the process of selling the business equipment." Thus, the requisite "good cause" to stay execution of the warrant of eviction (see RPAPL 749 [3]), especially one issued pursuant to a so-ordered stipulation, was absent as a matter of law (see City of New York v 130/40 Essex St. Dev. Corp., 302 AD2d 292 [2003]; cf. Harvey 1390 LLC v Bodenheim, 96 AD3d 664 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 09, 2015