164-03, LLC v Poblete

[*1] 164-03, LLC v Poblete 2020 NY Slip Op 50280(U) Decided on February 21, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-2257 Q C

164-03, LLC, Appellant,

against

George Poblete, Jr. and Nora Lissette Poblete, Respondents, et al., Undertenants.

Law Office of Neil R. Finkston (Neil R. Finkston of counsel), for appellant. The Legal Aid Society-Queens Office (Sateesh Nori of counsel), for respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Kimon C. Thermos, J.), entered February 22, 2018. The final judgment, upon an order of that court dated December 29, 2017 granting tenants' motion for summary judgment, dismissed the petition.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this nonpayment proceeding to recover rent arrears representing only the 20% rent increase in a vacancy, rent-stabilized lease entered into by tenants on January 13, 2017. On that same date, tenants had tendered all outstanding arrears, legal fees, and marshal fees to landlord, pursuant to a post-eviction order dated January 10, 2017 issued in a prior nonpayment proceeding against George Poblete, Jr., who was the sole tenant on the prior lease, but landlord had, without court approval, required tenants to sign the vacancy lease as a condition of restoration. In opposition to tenants' motion for summary judgment dismissing this nonpayment proceeding on the ground that the vacancy lease was void, landlord argued that it was entitled to enter into the vacancy lease with tenants because of the eviction and that the January 10, 2017 order, pursuant to which the arrears, legal fees and marshal fees were paid, did not expressly state that upon payment restoration was granted.

We find that the January 10, 2017 post-eviction order implicitly ordered restoration. If this were not the case, there would not have been a basis for the Civil Court's inclusion in the order of the requirement that tenant George Poblete, Jr. pay January 2017 rent and the legal and marshal fees. It was undisputed that the eviction occurred on January 6, 2017 and that landlord had not moved for an award of the legal or marshal fees. Landlord accepted the benefits of the January 10, 2017 order and signed a statement, prepared by tenant George Poblete, Jr.'s attorney, in which landlord acknowledged that it had received amounts in satisfaction of the January 10, 2017 order, "that the judgment and warrant are vacated, that [the] case is resolved, and that [tenant] and his family may return to their apartment immediately." It is within the power of the courts, under appropriate circumstances, to restore a tenant to possession after the execution of the warrant of eviction (see CPLR 5015 [d]; Elmback Owners, LLC v Newbold, 59 Misc 3d 136[A], 2018 NY Slip Op 50518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Wira Assoc. v Easy,48 Misc 3d 137[A], 2015 NY Slip Op 51203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 2242 Clarendon Realty, LLC v Etienne, 45 Misc 3d 132[A], 2014 NY Slip Op 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In the prior nonpayment proceeding, the Civil Court apparently found that such circumstances existed so long as tenant George Poblete, Jr. made landlord whole by paying all of the arrears as well as legal and marshal fees, and it is clear that the court intended, as landlord acknowledged in its statement, to vacate the warrant, and to grant restoration under the existing lease.

Rent Stabilization Code (9 NYCRR) (RSC) § 2520.13 provides, in pertinent part, "An agreement by the tenant to waive the benefit of any provision of the [Rent Stabilization Law] or this Code is void," and it is well settled that a waiver of a provision of the Rent Stabilization Code is unenforceable as a matter of public policy (see Georgia Props., Inc. v Dalsimer, 39 AD3d 332 [2007]; Drucker v Mauro, 30 AD3d 37 [2006]; New York Hanover Corp. v Ibodli, 46 Misc 3d 77 [App Term, 1st Dept 2014]). Consequently, the January 13, 2017 vacancy lease signed by tenants is unenforceable, and the rent sought in this nonpayment proceeding premised on the rent amount in that lease is in excess of the legal rent. Thus, the court properly granted tenants' motion for summary judgment dismissing the petition.

Landlord's remaining contentions are without merit.

Accordingly, the final judgment is affirmed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 21, 2020