Manor v Donati

[*1] Manor v Donati 2010 NY Slip Op 51335(U) [28 Misc 3d 133(A)] Decided on July 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-722 W C.

Monastery Manor, Respondent,

against

Stephen Donati, Appellant.

Appeal from an order of the City Court of the City of Yonkers, Westchester County (Charles D. Wood, J.), entered April 2, 2009. The order denied tenant's motion to vacate a warrant of eviction in a nonpayment summary proceeding.

ORDERED that the order is reversed without costs and tenant's motion to vacate the warrant of eviction is granted.

After tenant failed for two months to tender his portion of the rent for the subject Section 8 subsidized premises, landlord commenced this nonpayment summary proceeding to recover possession and a money judgment. Tenant failed to appear or answer, and a default final judgment was entered awarding landlord possession. Thereafter, tenant, having obtained a commitment from the Westchester County Department of Social Services (DSS) for the total of the unpaid rent, conditioned on landlord's providing a W-9 form and proof of a tax identification number, successfully moved to vacate the default final judgment. Landlord refused to provide the form and tax number, and obtained a second final judgment and warrant of eviction, entered January 9, 2009. Tenant then obtained counsel, who moved to vacate the warrant of eviction pursuant to RPAPL 749 (3), arguing, among other things, that the federal regulations prohibit the owners of federally subsidized premises from interfering with the efforts of tenants to obtain public assistance. Landlord opposed the motion, arguing that the City Court lacked authority to compel it to provide the requested information (citing Plumaj v Ferry, NYLJ, Mar. 5, 1996 [App Term, 9th & 10th Jud Dists] [City Court lacks injunctive authority to direct a landlord to sign a W-9 form for submission to DSS]); that the termination of the landlord-tenant relationship relieved it of the obligation to accept rent; and that the alleged use of illegal substances on the premises by tenant's son voided its contractual obligations under the Section 8 program and merited tenant's eviction on this ground alone. The City Court denied the motion. [*2]

While, in a nonpayment proceeding, the landlord-tenant relationship terminates upon the issuance of the warrant of eviction (RPAPL 749 [3]), a tenant, for good cause shown, may be permitted to cure a rent default even after a final judgment of possession has been entered and a warrant of eviction has issued (Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; West Sterling Realty, LLC v Marshall, 24 Misc 3d 140[A], 2009 NY Slip Op 51632[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Rhinestone Ventures Assoc. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d & 11th Jud Dists 2002]). In our view, such relief is appropriate here given tenant's age, his long-term tenancy, the absence of a history of nonpayment of rent prior to August 2008, the DSS commitment for the full amount of the arrears, and the fact that landlord is the recipient of federal project-based Section 8 assistance, the governing regulations of which provide that landlords "shall not interfere with the efforts of tenants to obtain rent subsidies or other public assistance" (25 CFR § 245.205 [a]; cf. 16 Apt. Assoc., Inc. v Lewis, 24 Misc 3d 127[A], 2009 NY Slip Op 51265[U] [App Term, 9th & 10th Jud Dists 2009]). We note that landlord did not establish that tenant's son resided at tenant's apartment and committed such acts as would merit the termination of the tenancy, which claim was not, in any event, a ground asserted in the petition.

Accordingly, the order is reversed and tenant's motion to vacate the warrant of eviction is granted.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: July 22, 2010