3881 Richmond Ave. Realty, Inc. v Richmond Amboy Realty

[*1] 3881 Richmond Ave. Realty, Inc. v Richmond Amboy Realty 2007 NY Slip Op 52001(U) [17 Misc 3d 132(A)] Decided on September 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2007-694 RI C.

3881 Richmond Ave. Realty, Inc., Respondent,

against

Richmond Amboy Realty, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), dated April 23, 2007. The order denied a motion by tenant seeking, inter alia, to vacate a final judgment and warrant, and to be restored to possession.

Order modified by providing that tenant's motion is granted to the extent of vacating the warrant and directing that tenant be restored to possession forthwith; as so modified, affirmed without costs.

In this commercial nonpayment proceeding seeking arrears in rent and additional rent, tenant, which was in possession pursuant to a 45-year lease entered into in October 2003, defended on the ground, inter alia, that landlord had defaulted on its agreement to free the premises, a former gas station, of contaminated soil and ground water. On November 8, 2006, the parties stipulated that landlord would have a final judgment for possession and the sum of $45,000, that the warrant would issue forthwith, and that execution of the warrant would be stayed for payment of $45,000 that day. Although the pre-printed language of the stipulation stated that payment was to be made by cash, certified check or money order, landlord accepted a corporate check tendered that day. The record shows that on November 8, 2006, there were sufficient funds in the account on which the check was drawn to cover the check, and that this was true at the beginning of November 9, 2006 as well. However, the check was not presented for collection until later in the day on November 9, 2006, at which time the account balance had dropped, and the bank dishonored the check. When tenant's attorney was [*2]advised by landlord's attorney on November 22, 2006 that the check had been dishonored, he, after contacting the bank, directed landlord's attorney to re-deposit the check. According to tenant's attorney's undisputed averment, landlord's attorney agreed to re-deposit the check. The bank statement for the account on which the check was drawn, submitted on consent in the court below, showed that at the time tenant's counsel directed landlord's counsel to re-deposit the check, there were sufficient funds in the account to cover the check. However, the check was not re-deposited, and, on December 11, 2006, the warrant issued. On December 12, 2006, landlord changed attorneys, and landlord's new attorney refused to re-deposit the check or to accept a bank check tendered by tenant's attorney on December 14, 2006. Tenant was evicted on December 29, 2006. Thereafter, tenant moved, inter alia, to vacate the final judgment and warrant, and to be restored to possession.

Where there is a valid tender or payment of the full amount of the final judgment prior to the issuance of the warrant, the warrant is a nullity (see Iltit Assoc. v Sterner, 63 AD2d 600 [1978]; Bentone v Jimenez, NYLJ, Mar. 28, 1991 [App Term, 9th & 10th Jud Dists]; Matter of Vaile v Moritt, 222 NYS2d 290 [1961]). In the instant matter, although landlord was entitled, under the terms of the stipulation, to issuance of the warrant "forthwith" upon the stipulation's execution, landlord did not act immediately upon this right, and the warrant did not issue until December 11, 2006. By that time, tenant's attorney had been notified that the check had been dishonored and had, after checking with the bank, directed landlord's counsel to re-deposit the check. It is undisputed that landlord's attorney agreed to do so.

A tender of a check is a valid tender of payment where the recipient does not object to the mode of payment (see Matter of San Giacomo, 14 NY2d 615, 617 [1964]). Here, notwithstanding the pre-printed language of the form stipulation, landlord at no time objected to the check as a mode of payment, but rather agreed to accept the check, and therefore waived its right to demand payment by cash, certified check or money order. In the circumstances presented, tenant's counsel's direction to landlord's then counsel to re-deposit the check and the latter's agreement to do so, constituted a conditional payment of the judgment amount (see UCC 3-802 [1] [b]), no different than if tenant had offered and landlord had accepted a new check. As a result, landlord's right to enforce the judgment was suspended until the check's presentment and dishonor (see id.). Since there was a valid tender and conditional payment of the amount of the final judgment prior to the issuance of the warrant, the warrant issued was a nullity. Accordingly, we grant tenant's motion to the extent of vacating the warrant and restoring tenant to possession.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007