J & H Mgt. LLC v Hai

[*1] J & H Mgt. LLC v Hai 2005 NYSlipOp 51329(U) Decided on August 11, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-231 K C NO. 2004-231 K C

J & H Management LLC, Respondent,

against

Zion Hai and Oleexandra Hai, Appellants.

Appeal by tenants from an order of the Civil Court, Kings County (M. Sikowitz, J.), dated February 11, 2004, which denied their motion, inter alia, to vacate the warrant for good cause shown.

Order modified by providing that the branch of tenants' motion seeking to vacate the warrant for good cause shown is granted; as so modified, affirmed without costs.

The record indicates that tenants acted expeditiously to obtain public assistance to pay the amount of the judgment and that they were prepared to pay all the arrears. Under these circumstances, and in consideration of the long duration of the tenancy (see Jones v Allen, 185 Misc 2d 443, 449 [App Term, 2d & 11th Jud Dists
2000]), tenants demonstrated "good cause" sufficient to vacate the warrant (see RPAPL 749 [3]; 1058 Bushwick Ave. Corp. v Heard, 7 Misc 3d 133[A], 2005 NY Slip Op 50647[U] [App Term, 2d & 11th Jud Dists]; Rhinestone Ventures Assoc. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d & 11th Jud Dists]).

Since this court has previously ordered the arrears, held on deposit in the court below, released to landlord, we vacate the warrant unconditionally.

Pesce, P.J. and Rios, J., concur.

Patterson, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
J & H MANAGEMENT LLC,
Respondent,

-against-

ZION HAI and OLEEXANDRA HAI,
Appellants.

Patterson, J., dissents in part and concurs in part, and votes to affirm the order in the following memorandum:

While I am sympathetic to tenants' plight, I find that the court below did not abuse its discretion in denying that branch of tenants' motion seeking to vacate the warrant based upon its determination that tenants failed to demonstrate "good cause" (see RPAPL 749 [3]). Contrary to the majority's view, I conclude that the record falls short of demonstrating that tenants acted "expeditiously" to obtain public assistance. Indeed, tenants made no attempt to seek financial assistance and pay the arrears until some time after the trial. In the interim, tenants attempted to thwart payment of the arrears by raising largely baseless claims of disrepair. On this record, it cannot be said that tenants have demonstrated "good cause" sufficient to vacate the warrant. Accordingly, I would affirm the order of the court below and would deny the motion in its entirety.
Decision Date: August 11, 2005