Morrison Mgt. LLC v Geraldino

[*1] Morrison Mgt. LLC v Geraldino 2010 NY Slip Op 52140(U) [29 Misc 3d 1234(A)] Decided on November 9, 2010 Civil Court Of The City Of New York, Bronx County McClanahan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2010
Civil Court of the City of New York, Bronx County

Morrison Management LLC, Petitioner,

against

Junior Geraldino, Respondent.



L & T 17639/10



Counsel: Petitioner: Brian Stark, Esq.

Counsel: Respondent: Legal Services NYC-Bronx

Kevin C. McClanahan, J.

This matter was set down for a hearing to determine whether appropriate circumstances exist to warrant vacatur of the judgment and warrant and restoration of the tenant of record to the subject premises. The hearing took place on November 1, 2010.

The Court has authority to restore a tenant to possession pursuant to RPAPL § 749(3). Specifically, that section provides that this court may vacate a warrant of eviction for good cause shown. (See also 102-116 Eight Avenue Associates, L.P. v. Oyola, 299 AD2d 296 (1st Dept 2002); Parkchester Apartments v. Scott, 271 AD2d 273 (1st Dept 2000). Thus, the "Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed." (Brusco v. Braun, 84 NY2d 674, 682 [1994]. See also Oppenheim v. Spike, 107 Misc 2d 55, 56 [App. Term 1st Dep't 1980].) Each application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities of the parties. See Parkchester Apartments Co. v. Heim, 158 Misc 2d 982, 983-984. In Oyola, supra, the Appellate Division, First Department affirmed vacatur of a warrant and restoration of a tenant to possession "under the particular facts and circumstances of record." See also 14 Realty Corp. v. Mendez, NYLJ, October 9, 1992, at p 22, col 1 (App Trm 1st Dept). Case law establishes various factors that should be used in the Court's conducting the good cause inquiry, including willfulness and circumstances of the payment defaults, length of the tenancy, rent regulatory status, forfeiture of rent regulated tenancy to be avoided, time of the application for arrears and delays excusable due to tenant's disability and DSS.

Discussion

The particular facts and circumstances of this proceeding weigh in favor of respondent's [*2]restoration to possession. The record reveals that Mr. Geraldino is a veteran with the National Guard. He is 40 years old and has resided in the subject premises for over 14 years. His mother is 71 years of age and has lived with the respondent for the last 6 years. They subsist on his mother's SSI benefits of $657 per month and his income of $400 per month. About 4 or 5 months before his eviction, he was temporarily suspended from his job.

Mr. Geraldino testified that he applied for a one shot deal in June or July of this year. He went back and forth to the Human Resource Agency, timely meeting all of his requirements. He also proffers a DSS document which purports to establish that his case was delayed and inadvertently denied because "...client was scanned under the wrong case number...case pending 8/24/10." Petitioner provided no testimony to rebut Mr. Geraldino's explanation for the delay in obtaining the back arrears. He is now approved by DSS and has the remaining funds to satisfy all arrears to date.

Based on the foregoing, the Court grants the motion and directs petitioner to restore the respondent to possession of the subject premises upon payment by November17, 2010, of $6,262.51 which represents all rent due through November 2010, plus legal and marshal fees of $1575, for a total amount of $7,837.51. If paid, the petitioner shall forthwith restore the respondent to the subject premises. If not paid, the motion is deemed denied and all stays vacated. The Court shall mail courtesy copies of its decision/order to counsel.

Dated: November 9, 2010________________________

Bronx, New YorkKevin C. McClanahan, J.H.C.