368 Chauncey Ave. Trust v Whitaker

[*1] 368 Chauncey Ave. Trust v Whitaker 2010 NY Slip Op 51254(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2009-1293 K C.

368 Chauncey Ave. Trust, Appellant,

against

Justin A. Whitaker, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, J.), entered May 7, 2009. The order granted tenant's motion to stay the execution of a warrant of eviction.

ORDERED that the order is reversed without costs and tenant's motion to stay the execution of the warrant of eviction is denied.

In this residential nonpayment proceeding, the parties entered into a stipulation wherein they agreed that tenant owed landlord $1,400 through February 2009, after an abatement of $850; that landlord would have judgment in the sum of $1,400; that the warrant of eviction would be stayed on condition tenant pay landlord the $1,400 by March 20, 2009; that any monies received would first be applied to the current $1,250 monthly rent; and that the abatement would be reversed and landlord could execute on the warrant if tenant did not timely pay. Thereafter, tenant moved to stay execution of the warrant. The Civil Court granted tenant's motion, finding that tenant's late payment "is a de minimis deviation from the stipulation and petitioner should not be permitted to cancel or withdraw the abatement of $850.00." The instant appeal by landlord ensued.

Enforcement of a stipulation remains subject to the supervision of the courts (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]), and courts may relieve a party from the consequences of strict enforcement of a stipulation when it would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see e.g. Weitz v Murphy, 241 AD2d 547 [1997]; Bank of NY v Forlini, 220 AD2d 377 [1995]; Hyman [*2]Embroidery Works v Action House, 89 AD2d 515 [1982]). Such relief is appropriate where a party has substantially complied with the stipulation (see e.g. J & H Mgt. Corp. v W.W.R.S Automotive Inc., 7 Misc 3d 134[A], 2005 NY Slip Op 50742[U] [App Term, 2d & 11th Jud Dists 2005]; AMA Realty LLC v Farfan, 4 Misc 3d 131[A], 2004 NY Slip Op 50702[U] [App Term, 2d & 11th Jud Dists 2004]). Where, however, enforcement of the stipulation is not unjust under the circumstances, the stipulation must be enforced according to its terms if a party has failed to substantially comply therewith (see Chelsea 19 Assoc. v James, 67 AD3d 601 [2009]; Cadlerock Joint Venture, L.P. v Rubinstein, 26 AD3d 219 [2006]). Contrary to the dissenting opinion, the authority of the court to vacate a warrant for good cause shown (see RPAPL 749 [3]; Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]) is not appropriately invoked to override or alter the foregoing standards.

It is uncontroverted that tenant did not timely make the $1,400 payment. Pursuant to the stipulation, tenant was required to pay $1,400 to landlord by March 20, 2009 and any monies received would first be applied to the current rent. Landlord applied $1,250 of the initial payments it received from tenant, totaling $1,500, to tenant's March rent, and applied the $1,250 it received from tenant in April 2009 to his April rent. Therefore, tenant paid landlord only $250 towards the $1,400 due under the stipulation. As tenant did not substantially comply with his obligations under the stipulation, he should not have been granted a stay of the execution of the warrant of eviction. Accordingly, the order is reversed and tenant's motion is denied.

Golia, J.P., and Weston, J., concur.

Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the order in the following memorandum:

Landlord commenced this nonpayment proceeding, alleging that tenant owed $2,030. Tenant interposed the defense of breach of warranty of habitability and claimed that the rent had been paid. By stipulation dated December 15, 2008, landlord agreed that a sum significantly less than the amount demanded was owed. In addition, landlord agreed to remedy various conditions of disrepair, including the absence of "hot water." Tenant, for his part, agreed to make various installment payments to satisfy the arrears, with the provision that "all payments would be applied to current rent." A subsequent stipulation, dated February 25, 2009, granted tenant an abatement of $850, leaving a balance due of $1,400. In April 2009, tenant moved by order to show cause for an extension, claiming that the arrears of $1,400 had been paid, albeit late, and that April rent had been accepted, leaving the rent for March 2009 as outstanding. The Civil Court granted tenant an extension, and landlord appealed.

A court retains the authority to vacate a warrant of eviction prior to its execution upon a showing of good cause (see RPAPL 749 [3]; Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; 835 Carol St. 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] [*3][App Term, 2d & 11th Jud Dists 2002]); therefore, it stands to reason that a court may extend the due date of payments agreed to by a tenant, if there is no prejudice to the landlord. In the case at bar, tenant has tendered more than $4,000 in payments since the inception of the proceeding. Landlord's application of the payments to the current rent created a default which, landlord argues, should permit the execution of the warrant.

At the outset, it is noted that a stipulation which permits the unfettered collection of future rents deprives a tenant of his right to interpose any defenses. Under such an agreement, a landlord can enforce a judgment without the need to present a prima facie case, and the tenant is stripped of the statutory defense of breach of the warranty of habitability (see Ruppert House Co. v Altmann, 127 Misc 2d 115 [1995]; 520 E. 86th St. v Leventritt,127 Misc 2d 566 [1985]). Herein, tenant's default was de minimis, and the Civil Court was within its rights to issue a discretionary stay to permit tenant to satisfy the arrears.
Decision Date: July 16, 2010