West Sterling Realty, LLC v Marshall

[*1] West Sterling Realty, LLC v Marshall 2009 NY Slip Op 51632(U) [24 Misc 3d 140(A)] Decided on July 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1129 K C.

West Sterling Realty, LLC, Appellant,

against

Nathaniel Marshall, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, J.), dated March 24, 2008. The order conditionally vacated a warrant.

Order affirmed without costs.

In this nonpayment proceeding, the Civil Court, by order dated March 24, 2008, vacated a warrant of eviction on condition tenant pay all the arrears by March 28, 2008. Landlord appeals, arguing, among other things, that tenant failed to show good cause for such relief.

Although the issuance of a warrant of eviction cancels the agreement under which the person removed held the premises, and a party has a right to expect that a
judgment will be enforced and final, the court retains the authority to vacate the warrant prior to its execution upon a showing of good cause (RPAPL 749 [3]; see Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; 835 Carol Street Corp. v Reap, 11 Misc 3d 132[A], 2006 NY Slip Op 50354[U] [App Term, 2d & 11th Jud Dists 2006]; Rhinestone Ventures Assoc. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d & 11th Jud Dists 2002]). Under the unique circumstances of this case, we conclude that the Civil Court providently exercised its discretion in conditionally vacating the warrant for good cause shown. We note that this 30-year rent-stabilized tenant, who fell into arrears after withholding rent based on his belief that his apartment was uninhabitable, was able to make ongoing monthly rent payments and, after making diligent efforts to obtain financial assistance, tendered full payment of the arrears.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 24, 2009