110 Ocean Parkway Owners Corp. v Quality Care Physical Therapy, P.C.

[*1] 110 Ocean Parkway Owners Corp. v Quality Care Physical Therapy, P.C. 2016 NY Slip Op 51241(U) Decided on August 10, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2015-496 K C

110 Ocean Parkway Owners Corp., Respondent,

against

Quality Care Physical Therapy, P.C., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated March 19, 2015. The order denied tenant's motion to vacate the warrant in a nonpayment summary proceeding.

ORDERED that the order is reversed, without costs, and tenant's motion to vacate the warrant is granted upon condition that, within 20 days of the date of this decision and order, tenant pay to landlord $500 as attorney's fees.

Under the circumstances presented in this commercial nonpayment proceeding, including the length of the tenancy and tenant's preparedness to pay the arrears, tenant's motion to vacate the warrant for good cause shown should have been granted (see RPAPL 749 [3]; see also 1058 Bushwick Ave. Corp. v Heard, 7 Misc 3d 133[A], 2005 NY Slip Op 50647[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; Rhinestone Ventures Assoc. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; Jones v Allen, 185 Misc 2d 443, 449 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]). However, in view of the inconvenience to, and the expenses incurred by, landlord, the vacatur of the warrant is, in the exercise of discretion, conditioned upon the payment of $500 in attorney's fees by tenant to landlord (cf. Wehringer v Kessler, 56 AD2d 547 [1977]; Archstone Camargue I LLC v Korte, 40 Misc 3d 163 [App Term, 1st Dept 2013]).

Accordingly, the order is reversed and tenant's motion to vacate the warrant is granted on condition that, within 20 days of the date of this decision and order, tenant pay to landlord $500 as attorney's fees.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: August 10, 2016