North Town Phase III Assoc. v Petrov
Annotate this CaseDecided on May 9, 2011
Civil Court of the City of New York, New York County
North Town Phase III Assoc., Petitioners-Landlord
against
Debora Petrov, Respondent-Tenant
L & T 77701/10
GUTMAN MINTZ BAKER & SONNENFELDT, PC
Attorneys for Petitioner
By: NEAL SONNENFELDT, ESQ
813 Jericho Turnpike
New Hyde Park, NY 11040
(516) 775-7007
DEBORA PETROV
Respondent Pro Se
595 Main Street, Apt. 1502
Roosevelt Island, NY 10044
Sabrina B. Kraus, J.
BACKGROUND
This summary nonpayment proceeding was commenced by NORTH TOWN PHASE III ASSOC (Petitioner) against DEBORA PETROV, the rent-stabilized tenant of record (Respondent), seeking to recover possession of 595 MAIN STREET, Apt. 1502, ROOSEVELT ISLAND, NY 10044 (Subject Premises) based on the allegation that Respondent had failed to pay rent due pursuant to her lease agreement.
PROCEDURAL HISTORY
This proceeding was commenced in 2010. On the initial court date, August 17, 2010, the parties entered into a stipulation of settlement wherein Respondent consented to entry of a judgment in the amount of $15,314.43, as all arrears due through August 2010. Respondent consented to the forthwith issuance of the warrant of eviction, and agreed to pay $1000.00 by August 31, 2010, and the balance by September 30, 2010. The warrant of eviction issued on August 31, 2010.
On August 31, 2010, Respondent moved for a stay of execution of the warrant, Respondent's order to show cause was resolved by a second stipulation of settlement executed by the parties on September 13, 2010, wherein Respondent agreed that she owed $17,127.30 [*2]through September and that she would pay same by October 8, 2010.
On November 1, 2010, the parties entered into a third stipulation of settlement, on a subsequent order to show cause brought by Respondent.Respondent agreed she owed $19,754.28 for rent through November 30, 2010, and that she would pay $300 by November 5, 2010, $1812.95 by November 10, 2010, and then $300 per week toward arrears, plus current rent by the tenth of each month, until the judgment was satisfied.
RESPONDENT'S MOTION
Respondent now moves for a stay of execution of the warrant and asserts that she is applying for assistance with arrears, making weekly payments, and has filed bankruptcy. The motion was adjourned on two occasions and Petitioner filed opposition papers. Petitioner states that the bankruptcy filing does not implicate an automatic stay, and Respondent argued that it does. After argument, on May 9, 2011, the Court reserved decision.
Generally speaking, the Bankruptcy Code provides for an automatic stay upon filing, of cases that were commenced against the debtor to recover on a claim that arose prior to the filing [Title 11 USC § 362(a)(1)].However, § 362(b)(22) provides that the automatic stay is not applicable to " ... the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor."
However, an exception to the above rule regarding the inapplicability of the stay where the filing was after entry of a judgment of possession is provided for if the debtor has a right to cure the default, and deposits with the bankruptcy court any rent that would become due during the 30 days subsequent to the filing of the bankruptcy petition [§ 362 (l)(1)].
In the case at bar, Petitioner annexes to its opposition papers a notice issued by the Bankruptcy Court that Respondent had failed to satisfy the requirements of 11 USC §362(l)(1)(B) "by failing to provide the Clerk of the Court with a deposit of any rent that would become due during the 30-day period after the filing of the bankruptcy petition."
While Respondent filed some additional papers in support of her motion, including a copy of the bankruptcy petition and several applications made by Respondent in that proceeding which were denied, the Court finds that nothing in said submissions establishes that Respondent is entitled to stay under the bankruptcy laws.
Based on the forgoing, the Court finds that there is no applicable stay on this summary proceeding.
Respondent's current monthly rent is $1812.95. Since the date of the November 1, 2010 stipulation, Respondent has paid $5500, not credit her for $3012.95 in payments that were not honored and did not clear.
Through and including May 2011, Respondent was required to pay $2112.95 for the first two payments under the stipulation, plus 26 additional payments of $300 per week ($7800), plus current rent for December 2010 through May 2011 at $1812.95 per month ( $10,877,70).
Thus the total payments due under the stipulation through May 10, 2011 would be $20,790.65. As Respondent has only paid a fraction of that amount, there remains $15,290.00 past due under the terms of the parties stipulation. Moreover pursuant to said stipulation there is a total of $25,131.98 in arrears due through May 2011, and the stipulation provided for all sums to become immediately due upon breach. [*3]
As Respondent has breached several stipulations in this proceeding and shows no ability to comply with the terms of the last stipulation between the parties, and pay the substantial arrears that have accrued, Respondent's motion is denied. All stays are vacated and the warrant may execute on re-service of marshal's notice.
This constitutes the decision and order of this Court.
___________________________
SABRINA B. KRAUS
Dated: New York, New York
May 9, 2011
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