Clark Wilson, Inc. v Mitchell

[*1] Clark Wilson, Inc. v Mitchell 2005 NY Slip Op 52198(U) [10 Misc 3d 139(A)] Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2004-1627 K C.

CLARK WILSON, INC., Respondent,

against

BEULAH MITCHELL, Appellant, -and- EARL MITCHELL, Undertenant.

Appeals from (1) an order of the Civil Court of the City of New York, Kings County (George M. Heymann, J.), dated November 17, 2004, and (2) an order of said court, dated March 9, 2005. The orders denied applications by tenant seeking, inter alia, relief from a warrant and to enlarge her time to make the payment due under a stipulation.

Order dated November 17, 2004 unanimously affirmed without costs.

Order dated March 9, 2005 unanimously reversed without costs and tenant's motion granted to the extent of vacating the warrant and deeming tenant's payments under the stipulation to have been timely made.

The order dated November 17, 2004 is affirmed because tenant's pro se motion papers in support of the motion showed no adequate basis for the relief sought. However, for the reasons that follow and in view of tenant's 34-year tenancy with her family in the subject rent-stabilized unit, the order dated March 9, 2005 is reversed and tenant's motion granted to the extent of vacating the warrant of eviction and deeming tenant's payments under the stipulation to have [*2]been timely made.

The stipulation dated April 20, 2004 settling this chronic-nonpayment holdover proceeding provided that if tenant timely complied with the payment schedule set forth therein, the proceeding would be deemed discontinued as of March 31, 2005. The stipulation further provided that upon a failure by tenant to timely make a "rent" payment as set forth therein, execution of the warrant could accelerate upon a five-day notice of default. It is undisputed that tenant timely made the first payment of $3,318.08 due [*3]
under the stipulation, representing all rents owed through April 30, 2004, by said date and several of the semi-monthly payments due thereafter. However, in a default notice and attached affidavit of noncompliance, landlord's agent stated that tenant had failed to make a payment of $276.09 due by August 10, 2004 and a payment of $276.09 due by August 25, 2004 and now owed September 2004 rent as well. The notice adverted to no other default. (On appeal, landlord claims, without support in the record, that the alleged missed payments were those due May 10, 2004 and July 25, 2004.) In support of her motion which resulted in the order of March 9, 2005, tenant averred that she had in fact not missed any of the rent payments due in June, July, August or September 2004, and that landlord had not cashed her September payment. Landlord submitted no adequate opposition made on personal knowledge to this claim. In view of the foregoing and in light of the 34-year tenancy and the fact that all the payments due under the stipulation have been deposited into court pursuant to orders of this court, we deem the payments to have been timely made and vacate the warrant of eviction in the exercise of our continuing supervisory power over stipulations (see e.g. Robrose [*4]
Place v Bell, 6 Misc 3d 138[A], 2005 NY Slip Op 50338[U] [App Term, 1st Dept]; Everett D. Jennings Apts. v Jones, 4 Misc 3d 134[A], 2004 NY Slip Op 50773[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: December 30, 2005