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Harvey 1390 LLC v. Bodenheim

NEW YORK APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


September 17, 2010

HARVEY 1390 LLC, HARVEY 561 LLC, CAREN 601 LLC, CAREN 561 LLC, STACEY 601 LLC, STACEY 561 LLC AND HOWARD 561 LLC, PETITIONERS-LANDLORDS-APPELLANTS,
v.
MATTHEW BODENHEIM AND JOHN CASSARINO, RESPONDENTS-TENANTS-RESPONDENTS.

Landlords appeal from an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated March 9, 2010, which granted tenants' motion to the extent of staying execution of a warrant of eviction in a nonpayment summary proceeding.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.

Order (Arlene H. Hahn, J.), dated March 9, 2010, reversed, without costs, and tenant's motion denied. Execution of the warrant of eviction shall be stayed for 60 days after service of a copy of this order, with notice of entry.

While Civil Court may, in appropriate circumstances, relieve a tenant from a default in payment under a stipulation settling a nonpayment summary proceeding (see 102-116 Eighth Ave. Assoc., L.P. v Oyola, 299 AD2d 296 [2002]; Parkchester Apts. Co. v Heim, 158 Misc 2d 982 [1993]; see also 368 Chauncey Ave. Trust v Whitaker, 28 Misc 3d 130[A], 2010 NY Slip Op 51254[U] [2010]), circumstances sufficient to warrant such discretionary relief were not shown on this record. The February 26, 2010 short-form affidavit submitted below by tenants failed to adequately explain their failure to comply with the unambiguous payment terms of the October 2009 "so-ordered" settlement stipulation or the ensuing court order. The tenants' apparent difficulty in obtaining funds did not constitute "good cause" required to vacate the warrant of eviction (RPAPL 749[3]; see Chelsea 19 Assoc. v James, 67 AD3d 601 [2009]), at least on this record which contains no indication that tenants made timely efforts to comply with the monetary terms of the settlement agreement, "only to be stymied by events beyond [their] control" (cf. 2246 Holding Corp. v Nolasco, 52 AD3d 377, 378 [2008]). We note that, so far as shown, tenants took no steps to obtain the stipulated arrearages through recourse to charitable organizations or otherwise until after the payment due date agreed upon in the stipulation.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20100917

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