Mustafa v Plein

[*1] Mustafa v Plein 2010 NY Slip Op 52437(U) Decided on October 25, 2010 Civil Court Of The City Of New York, Kings County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2010
Civil Court of the City of New York, Kings County

Shirajul Mustafa, Petitioner,

against

Helgia Plein et al., Respondents



82893/10



Petitioner's counsel

David S. Harris, Esq.Helgia Plein - 1st Floor

88-32 Sutphin Blvd.227 Vernon Avenue

Jamaica, NY 11435Brooklyn, NY 11206

718-291-5544No known phone

Respondent pro se

Gary F. Marton, J.

Recitation pursuant to CPLR § 2219(a) of the papers considered in review of these motions:

PapersNumbered

Order to show cause....................................................................1

The court file...............................................................................2

This is a holdover proceeding. The premises at issue is an unregulated apartment in a three family house. On the proceeding's first return date of August 19, 2010 it was adjourned, as is marked on the court's file jacket, so that respondent might seek counsel and for trial on September 28, 2010. On that date, the scheduled trial was adjourned to October 8, 2010. On that date respondent did not appear and, after an inquest, the court granted petitioner a judgment of possession and a money judgment for $5,800.00 representing all rent/use & occupancy arrears through October 31, 2010.

Now respondent moves for relief. The motion is granted only as set out below. To vacate the default judgments herein, the court would have to find both that respondent's default on October 8, 2010 was excusable and that she had a meritorious defense. Here, respondent makes no showing of a meritorious defense, either to petitioner's claim for possession [*2]or to petitioner's claim for arrears[FN1]. Accordingly, the court denies the motion to the extent that she seeks to vacate the judgments.

RPAPL § 753 provides that the court may stay the issuance and/or execution of a warrant of eviction for a period of six months as long as respondent pays, either in whole or in installments, use & occupancy going forward and any rent arrears and/or accrued use & occupancy. The rent for the premises was $1,300.00 per month and neither party has offered any evidence probative of a different value for the premises. Accordingly, the court grants respondent's motion to the following extent: (a) the warrant may issue forthwith, (b) execution shall be stayed through March 31, 2011 (for respondent to vacate the premises) as long as respondent pays use & occupancy of $1,300.00 per month on the first of November 1, 2010 and the first of every month thereafter, and also as long as respondent pays $1,500.00 per month on the 15th of November, 2010, December, 2010, and January, 2011, and $1,100.00 on February 15, 2011 so as to discharge the accrued arrears, and (c) the warrant may be executed upon any default in payment, and (d) regardless of any default in payment petitioner may have a marshal's notice served on or after March 15, 2011 and may execute thereon on or after April 1, 2011.

The court will mail copies of this decision and order to the parties.

Dated: Brooklyn, New YorkOctober 25, 2010

GARY F. MARTON Footnotes

Footnote 1:At argument, respondent alleged that the arrears were $5,400.00 and not $5,800.00. However, the allegation was made in conclusory terms and without documentary support. Respondent may renew upon an appropriate showing.