Alwall Constr. Corp. v Clavijo

[*1] Alwall Constr. Corp. v Clavijo 2016 NY Slip Op 50333(U) Decided on March 18, 2016 Civil Court Of The City Of New York, Queens County Kullas, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2016
Civil Court of the City of New York, Queens County

Alwall Construction Corp., Petitioner,

against

Maria Clavijo and RAUL CLAVIJO, Respondents-Tenants, "JOHN DOE" and "JANE DOE," Respondents.



059019/15



Petitioner's attorney:

Law Offices of Scott D. Gross

151 Willis Avenue

Mineola, NY 11501
Joel R. Kullas, J.

This instance proceeding is a chronic nonpayment holdover. The parties originally settled the proceeding pursuant to a so-ordered stipulation dated July 27, 2015, whereby respondents agreed to pay $6997.52 in rental arrears by August 31, 2015 and to pay their monthly rent by the 20th of each month for the period of August 2015 through July 2016. The stipulation permitted one excusable default. The stipulation further provided that if petitioner proved more than one default, petitioner would be entitled to a judgment of possession as well as a money judgment for the outstanding use and occupancy.

On September 8, 2016, this court denied respondents' request for additional time to pay the rental arrears.

On January 19, 2016, this court granted petitioner's motion for a final judgment of possession in the amount of $11,458.12, representing the rental arrears due through October 2015, with a warrant of eviction to issue forthwith and execution stayed through February 29, 2016, for respondent to pay the judgment amount as well as use and occupancy for November 2015 through February 2016. Pursuant to this order, upon respondent's timely payment of the [*2]arrears by February 29, 2016, the probationary period of the July 27, 2015 stipulation was reinstated and extended through October 31, 2016.

Respondent defaulted in the February 29, 2016 payment deadline and now owes $16,698.36 in rent through March 31, 2016. Ordinarily, multiple defaults in a chronic nonpayment proceeding continuing into the probationary period are inexcusable. (See, e.g., M & B Lincoln Realty Corp v Lebrun, 4 Misc 3d 129[A] at 1* [App Term, 2nd & 11th Jud Dist 2004].) However, the court may still vacate a warrant after its issuance. (Sharp Image of NY, LLC, v. Williams, 49 Misc 3d 150[A] at 1*[App Term, 2nd, 11th & 13th Jud Dist 2015].) Indeed, the court must:

review of all the circumstances, including the extent of the delay, the length and nature of the tenancy, the amount of the default and the particular tenant's history, as well as a balancing of the equities of the parties (citations omitted). (1390 Harvey LLC v Bodenheim, 96 AD3d 664, 666 [1st Dept 2012].)

Agency delay is a particular factor in excusing a delay in payment. (2246 Holding Corp. v Nolasco, 52 AD3d 377 [1st Dept 2008].) In the present case, the court already held in its January 29, 2016 decision that respondents were seeking assistance from the New York City Department of Social Services ("DSS") to pay the rent arrears. In this instant motion, respondent now presents two approval letters: one, from Homebase, issued February 22, 2016, awarding respondents a grant of $5,000 contingent on respondents receiving a one-shot deal approval; two, the one-shot deal approval, in the amount of $9,848.36. The one-shot deal approval notes respondents must pay the current months' rent. Respondents presented an ATM bank receipt showing a presently available balance of $8,568.45. Thus, the full balance of $16,698.36 is ready for tender. In addition, respondents are long-term rent regulated tenants who experienced a death (of a parent) and illness (cancer diagnosis) who have received the assistance required to satisfy the arrears.

Based on the agency delay and the current approvals, (2246 Holding Corp. v Nolasco, 52 AD3d 377, supra) the court grants the motion to the extent of staying execution of the warrant through April 4, 2016 for tender of $16,698.36. Upon timely payment, the probationary period as originally provided for in the July 27, 2015 stipulation and extended pursuant to the January 19, 2016 order to October 31, 2016 is hereby reinstated. Upon default, the warrant may execute upon reservice of marshal's notice.

This constitutes the decision and order of the court.

___________________________

JOEL R. KULLAS, J.H.C.

The court has mailed copies to the parties as follows:

Unrepresented respondents:

Maria Clavijo and Raul Clavijo