Freedom Capital, LLC v Pumilio

[*1] Freedom Capital, LLC v Pumilio 2006 NY Slip Op 50345(U) [11 Misc 3d 131(A)] Decided on March 7, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-789 N C.

Freedom Capital, LLC, Respondent,

against

Albert Pumilio, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Randy Sue Marber, J.), entered December 16, 2004. The order denied tenant's motion to vacate a final judgment and warrant.

Order affirmed without costs.

In this nonpayment proceeding, tenant failed to timely make payment of the balance of the arrears due, as provided in the stipulation of settlement, by August 27, 2004. As a result, landlord, on September 27, 2004, obtained a final judgment and a warrant. Approximately one week after issuance of the warrant, tenant tendered the balance due under the stipulation but not the subsequently accruing rent. Landlord refused the tender. Tenant then moved to vacate the final judgment and warrant.

Although the issuance of a warrant of eviction cancels the agreement under which the person removed held the premises, the court, for good cause shown, retains the authority to vacate the warrant prior to execution thereof (see RPAPL 749 [3]; see also Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; Rhinestone Ventures Assocs. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d & 11th Jud Dists]; 32-05 Newton Assocs. v Hailazopoulos, 168 Misc 2d 125 [App Term, 2d & 11th Jud Dists 1996]). The instant proceeding was the third nonpayment proceeding instituted by landlord within the approximately one year of the tenancy. Moreover, at the time tenant tendered the balance due under the stipulation, there was an additional two months' rent due and owing. Tenant did not offer to tender said additional arrears until the [*2]
return date of his motion to vacate the judgment and warrant. In the circumstances presented, tenant failed to establish good cause so as to permit a court, in the exercise of its discretion, to vacate the warrant.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 7, 2006