Diorio v Harding

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Diorio v Harding 2015 NY Slip Op 31513(U) August 12, 2015 City Court of Peekskill Docket Number: LT-329-15 Judge: Reginald J. Johnson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] PEEKSKILL CITY COIJRT COLTNTY WESTCHESTER: OI' STAIE OF NEW YORK -----x PETERDIORIO. DECISION & ORDER Petitioner-Landlord, IndexNo. LT:329-15 --agamst-NICOLE HARDING and HUETT HARDING i::i:lf 1':. itli." l:.1 _ _ REGINALD J. JOHNSON,J. The Respondents-Tenants, Nicole Harding and Huett Hardingt pro se (hereinafter"the Respondents"), move by order to Show Cause seeking a vacatur of the judgment and warrant of eviction in favor of PeterDiorio, who is represented hereinby Clifford L. Davis (hereinafter, "the Landlord"), and dismissalof the petition; or, in the alternative, restoration ofl the case to the calendar upon the ground that the Respondents have all of the monies due, and for such other and further just andproper. relief as may seem The motion is decidedas setforth herein. In decidingthis Orderto ShowCause, Court considered the the order to Show cause with supportingaffidavit, andAffirmation in ' The Affrdavit in Supportof Order to Show Causewas providedby Nicole Harding only. 1 [* 2] Index No. LL329-I5 Opposition Orderto ShowCause. to Procedural History on June 22, 2015, the Landlord commenceda non-payment proceedingagainst the Respondents filing a notice of petition and by petition with the Court.2On June 24,2015, affidavits of servicewere filed with the Court. On June 30, 2015,the Landlord and Respondents appeared the LandlordlTenant in Part of this Court for a first appearance in this matter.At the conclusion of the hearing, the Court rendereda judgmentin favor of the Landlordin the sum of 52,025.00, judgmentof a possession, togetherwith a warrantof eviction stayedto July I0,2015. on July 14, 2015, the Court signed a judgment of possession and judgmentfor 52,025.00', a warrantof eviction.on July 23,2015,the and warrantwas given to the city marshal. July 30,2015,the Respondents On filed, and the Court signed,an order to show causeseekingto vacatethe judgment and warrant and to dismissthe petition. The Court directedthe partiesto appearfor a hearing on the order to show causeon August 7, 2015.On August4,2015, the Landlordsubmitted opposition papersand requested adjournment the hearingto August 11 an of ,2015.4The Court '?Affidavitsof servicein the file indicatethat the Respondents were servedwith a three-day notice and a notice of petition and petition by substituted seivice. 3A review of the Non-Payment JudgmentIn Favor of Landlord inaccuratelyrecites that the notice of petition and petition were personallyservedon the Respondents. Serviceof thesedocuments were made bv subgtilutgd_sgrylcg. Affidavits of Servicefor Notice of petition and petition. See aPetitioner'scounsel's cover letter,to which his affirmation in oppositionwas annexed, indicated that the Respondent Nicole Harding was copied.-The Court doesnot considerthis letter sufficient [* 3] Index No. LT-329-15 adjourned hearing August18,2015. the to Discussion I. Vacatingthe Judementand Warrantof Eviction RPAPL $749(3)states, pertinentparl, in 3. The issuing of a warrant for the removal of a tenant cancels the agreementunder which the person removedheld the premises,and annulsthe relation of landlord and tenant, but nothing contained herein shall deprive the court of the power to vacate such warrant for good causeshown prior to the execution thereof. (emphasis added). It is well settledthat the "issuance"of a warrantof eviction does not terminatethe summary proceedinguntil the warrant is "executed." whitmarsh v. Farnell.298 N.Y. 336 (l9a\;203 East l3th st. corp. v. Lechlzck)r" Misc.2d 451 (1" Dept. App. Term l97l) (holding that the 67 trial judge had jurisdiction to stay the proceedingeven though the warranthad alreadybeenissued); Harvelz Bodenheim" A.D.3d 664 v. 96 (1't Dept.2012) (Court noted that a court always retainsthe power to vacatea warrantof evictionprior to its execution 'good cause' for proof of servicethat Nicole Harding was duly servedwith the oppositionpapers.See,Civil ? [* 4] Index No. LT-329-15 shown).A warrant of eviction is "issued" when the warrant is made out or signedby the judge and deliveredby saidjudge to the court clerk for deliveryto the marshal. See, Ash v. Purnell.19 N.Y. Civ. Proc.Ft234,32 N.Y. St.Rep.306,11N.Y.S.54 (1890). But when is a warrantof eviction "executed"? warrantof eviction A is executed when the tenant is actually dispossessed evicted,or the or locks to the premiseschangedby the marshal. Grattan v. P.J. Tiernelz Sons.Inc.. 226 A.D. Bll (2d Dept. 1929). Unlessand until a tenantis actually dispossessed evicted from the premises, the summary or proceeding will be deemed pending and the Court retainsthe power to vacatethe wa,rrantof eviction for good causeshown. See,90 N.y. Jur. 2d, Real Property-Possessory Actions $276 citing, Whitmarshv. Farnell. , supra; Harvelzv. Bodenheim.supra. In furtherance of determining whether to vacate a warrant of eviction, the Court has the power to stay a summaryproceedingin order to considerwhether the facts and circumstances presented the tenant by warrant a finding of "good cause"to justifu a vacaturof the warrant of eviction.See,CPLR 52201s; East 13th corp. v. Lechyck)r. 203 St. supra; Macleod v Shapiro. A.D.2d 424,247 N.y.S.2d 423(l't Dept. 1964); 20 city of New York v. Falcone. 60 Misc.2d 234.612N.y. s.2d, 45 1 7 PracticeLaw and Rules (CPLR) $306. t CPLR 5220I states:"[e]xcept where otherwiseprescribed law, the court in which an action by is pendingmay grant a stay of proceedings a proper case,upon suchterms as may be just." in 4 [* 5] Index No. LL329-15 (App.Term2d Dept. 1994).IthasbeenheldthatUniformCity CourtAct (UCCA) $$2126 and2rc27extends authorityof CPLR 52201 City the to Courtsto granta stayof proceedings a propercase. in Matter of Fulton Redevelopment v. Kendall. Misc.2d 813,327 Co. 68 N.Y.S.2d (Sup. 956 Ct.Westchester l97l). Co. Further,the determination to whethera tenanthas presented as sufficient factualproof to justi$za findingof "goodcause" entrusted is to the sound discretion the Court.See, of Harveyv. Bodenheim, A.D.3d 96 at 664; 46 Misc.3d 1276, 9 N.y.S.3d 594(AxPeekskill Court2015). City What constitutes"good cause" for purposesof vacating a warrant of eviction in a summarynonpayment proceeding? The Court must make a sui generis determinationin every case basedon the facts presented when decidingwhetherthe tenanthas demonstrated "good cause."See, Archstone Camargue LLC v. Korte. 40 Misc.3d 103,971N.Y.S.2d I 642 (App. Term l't Dept. 2013). Parkchester Apartment Co. v. Heim" 158 Misc.2d982,607N.Y.S.2d 212(App.Term I't Dept. 1993). The courts have found "good cause"to vacatethe warrantof 'UCCA "[i]n the exerciseof its jurisdiction the court shall have all of the powersthat $212 states: the supreme court would have in like actionsand proceedings.,, 7UCCA "The CPLR and otherprovisionsof law relatingto practiceand procedure 52102states: in the sllpremecourt, notwithstanding reference nameor classification by thereinto any othel court, shall apply in this court as far as the sarneca11be madeapplicableand are not in conflict with this act." s [* 6] Index No. LT:329-15 eviction in proceedings involving the potentialforfeiture of a long-term, rent-stabllized tenancybasedupon on the tenant'sfailure to tender outstandingarrears and ancillary fees immediately upon the due date ( supra); in proceedings involving the hospitalization of the tenant and a lengthy convalescenceafter issuance of the warrant of eviction (pomerolz Co. v. Thompson. 5 Misc.3d 5 1, 784 N.Y.s.2d 278 (App. Term l " Dept. 2004); in proceedings involving a longtime rent-stabilized tenant who neededa short stay of' execution in order to pay his rent arrears (Harve), v. Bodenheim. supra.); and in proceedings involving a tenant who diligently applied to organizati.ons the rental affears and belatedly for received a commitment letter for the full amount of the arrears (BushwickProps..LLC v. wright, 34 Misc.3d 135[4], 2011N.y. Slip *r-2,20rr wL 6934a0a op. 52389[I]1, Jud. fApp.Term2"d& llth & 13th Dists. 20lll), amongotherproceedings. A court retainsthe power to vacatea warrantof eviction and return a tenantto possession evenafter its execution upon a proper showingby the tenant(Harvelzv. Bodenheim.supra.); Brusco v. Braun" 84 N.y.2d 674, 682, 645 N.E.2d 724, 727 (1994)(same); see, Davern Realty but corporation vaughn.161Misc.2d,550, N.y.s.2d 6g3 (App. Term, v. 616 2d &' 1lthJud.Dists. 1gg4)(Court held that acourt lacksthe authority to vacateawaffunt of eviction andrestoreatenantto possession after the [* 7] Index No. LT-329-15 warranthasbeenexecuted). In vacating a warrant of eviction, a Court should balance the equitiesto determinewhethergranting an applicationto vacatea warrant of eviction would causemore harm to the landlord than denying same would causeto the tenant. See, New York City Housing Authoritv v. Torres. A.D.2d68t (1" Dept. LgTg). 6l With regard to the money judgment, it is well settled that a Court cart vacate warrant of eviction without vacating the money judgment. See, B27N.y.S.2d 441,442-43 (App. Term, gth&' 10'hJud. Dists. 2006) (vacating warrantwithout impacting the judgment); money Kew Gardens LLC v. Saltos,gl4 N.y.s.2d B9l Ny (App. Term,2 & ll'h Jud.Dists. 2006)(same). $75I : Stayupon paying Rent or Giving lJndertaking: II. WL discretionary sta)'outsidecitlzof New york RPAPL $751 states, pertinent part, in The respondent frvy, at anytime before awarrantis issued, staythe issuingthereofand alsostayan execution collectthe to costs, follows: as 1. Wherethe lessee tenantholdsover aftera default or in the paymentof rent, or of taxesor assessments, he may effect a stayby depositingthe amountof the rent due or of suchtaxesor assessments, interest and and [* 8] IndexNo. LT-329-15 penalty,if any thereondue,andthe costsof the special proceeding, with the clerk of the court,or wherethe office of clerk is not providedfor, with the court,who shallthereupon, upon demand, the amount pay deposited the petitioneror his duly authorized to agent; or by deliveringto the court or clerk his undertaking to the petitionerin suchsum asthe court approves the to effect that he will pay the rent, or suchtaxesor assessments, interest and andpenaltyand costswithin ten days,atthe expirationof which time a warrantmay issue, unless produces the court satisfactory he to evidence the payment. of simply stated, where a tenant, against whom a nonpayment proceeding pending,deposits full amountof the rent due together is the with costswith the clerk of the court prior to the issuance the warrant of of eviction,the depositstaysthe issuance the warrant.See,Stevens of v. Roberts.183Misc.2d 174(county ct. Monroe county 1999);EverettD. Jennings Apts. L.P. v. Hinds. 12 Misc.3d 139(,{) (App. Term 2"d & rlth Jud.Dists.2006); 114East B4th Street Associates Albert. 128Misc.2d, v. 7s3 (N.Y.City Civ. Ct. 1985). [* 9] Index No. LT-329-15 AlthoughRPAPL $751(1)providesa tenantwith a self help means to effect a stay of the issuanceof a warrant by depositingall rents due and costs with the clerk of the court, this section does not prohibit the tenant from seekinga stay and an eventualvacatur of the warrantafter the warrant has been issued.In fact, after a waffant has been issuedin a nonpayment proceeding, stayof the warrantunderRpApL $751(l) is a no longerviable.See, EverettD. Jennings Apts. L.p. v. Hinds, supra. But doesthat mean that a tenantis foreclosedfrom seekinga stay of the warrantby other means? No. In the caseatbar, the Landlord argues that sincethe Respondent did not depositall of the rentsdue includingcostswith the clerk of the court before the issuance of the warrant in this case, the Respondentis precludedfrom seekingand obtaininga stay.See,Affirm. of c. Davis, As fl3. This argumentis misplaced. previouslystated,a court may stay the executionof a warrant of eviction pursuantto CPLR 52201,which permits stays"in a proper case,upon such terms as may be just,,, even though the tenanthas not paid rent and court costsas requiredfor a stay under RPAPL $751. See, canigiani v. Deptula.59 Misc.2d,401, 2gg N.Y.s.2d 234 (Dist. ct. 1969). A court's power to grarft a stay of executionof a waffant in a particular caseis not derived solely from the RPAPL $751et seq.,but from cpLR 52201 andllccA s212.See,pepsicola MetropolitanBottling Co.. Inc.. v. Miller. 50 Misc.2d,40(N.y. citv [* 10] Index No. LT!329-15 civ. ct. 1966);Novick v. Hall. 70 Misc.2d 641(N.y. ciry civ. ct. I972)(Courtstated that it is not divested powerto vacateor to extenda of stayafter issuance warrantof eviction). of Hence, the Landlord's argument that the Respondentwas neither entitled to request nor was the Court permitted to grant a stay of executionof the warrantin this caseis wholly without merit. Id. Interestingly,the Landlord did not cite any caselaw authority to support his argumentthat the Respondent was not entitled to a stay of execution of the warrant or that the Court was prohibited from granting a stay of executionof the warrant in this matter.Further,it is abundarfilyclear that not only does the Court have the inherent authority (Novick v. Hall. supra) and the statutoryauthority (203 East 13thSt. corp. v. Lechyck)," supra| Canigiani v. Deptula, supra ) to stay execution of the warrant of eviction, but zrlso authority to vacatea warrant of eviction for "good the cause" shown. See, Harvelz v. Bodenheim supra,. Brusco v. Braun. ) supra. The Court finds that the Respondent'srepresentationthat she recently found employmentafter being out of work due to medical leave and her representation that she is now in possession the $2025.00 of judgment sum warrantsthe employmentof equity in her favor. Affid. of N. Harding, No. 12;Tenant'sAnswer, No.7. See, Errigov. Diomede, 14 Misc.3d988 (N.Y City Civ. Ct. 2007)(decision general stated view that t0 [* 11] Index No. Ll'-329-15 courtsabhorforfeiture of leasehold estate a result of the dire as consequences that a tenant is faced with when forced to vacate premises).The Landlord has not adequatelyarticulated how he would be greatly prejudicedby any stay of or eventualvacatur of the warrant of evictionin this matter. Affirm. C. Davis,tT5. To the extent that the Respondentseeksa vacatur of the money judgment herein, said request is denied as the Respondent has not presented Court with any basisfor doing so. the Accordixlgly, a matterof discretionand in the interestof justice, as the Court grants the Order to Show Causeherein to the extent that the warrant of eviction is stayedto August 21, 2015 on condition that the Respondent tendersto the Landlord'sattorneythe sum of $2025.008 by certified checkor money orderby that date.If the Respondent tendersthe aforementioned sum on or beforethe aforementioneddate,thewarrantof evictionis vacatedsincethe moneyjudgmentwill havebeensatisfied. If the Respondent fails to tendersaid sum to the Landlord's attorneybv the aforementioned date,the order to Showcauseis denied. Any request relief not addressed this decisionis denied. for by Basedon the foregoing, is it Orderedthatthe Order to Show Causeis grantedto the extentthat the Respondent directed tenderthe sum of $2025.00 certified is to bv 8The Landlord's requestto amendthejudgment to include 11 $2800.00($1400.00fbr the monthsof [* 12] Index No. LT-329-ls checkor moneyorderto theLandlord's attorney laterthan no Friday" August 21,2015; ordered thatif theRespondent tenders sumof $2025.00 the the to Landlord's attorney or before on Friday, August21,2015, warrant the of eviction vacated; is ordered thatif theRespondent to tender sumof $2025.00 fails the to theLandlord's attorney or before on Friday, August21,2015, the Orderto ShowCause denied. is The foregoingconstitutes Decision the i of the e o Dated: Peekskill, Ny August12,2015 Judge Judgment enteredin accordance with the foregoingon this August,2015. ConcettaCardinale Chief Clerk Clifford L. Davis,Esq. Attorney for Petitioner-Landlord 202 Mamaroneck Ave, Third Floor WhitePlains, New york 10601-5301 (er4)761-1003 July and August 2015\ is denied. t2 day of [* 13] NicoleHarding Respondent-Tenant 630NorthDivisionStreet, Apt. 38 Peekskill, New York 10566 13

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