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1346 Eastern Parkway Hdfc, Respondent v. Oliver Robinson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 10, 2011

1346 EASTERN PARKWAY HDFC, RESPONDENT,
v.
OLIVER ROBINSON, APPELLANT.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.), entered May 17, 2010.

1346 E. Parkway HDFC v Robinson

Decided on August 10, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The final judgment, insofar as appealed from as limited by the brief, upon awarding landlord possession in a holdover summary proceeding, provided that the warrant may issue forthwith.

ORDERED that the final judgment, insofar as appealed from, is reversed, without costs, the provision that the warrant may issue forthwith is stricken and a provision is substituted therefor staying issuance of the warrant for 10 days, pursuant to RPAPL 753 (4), during which time tenant may correct the breach.

In this holdover summary proceeding to recover possession of a cooperative apartment based on tenant's breach of the proprietary lease by failing to pay maintenance charges, the Civil Court granted landlord's motion for summary judgment and awarded a final judgment of possession but failed to grant tenant a 10-day cure period as provided for in RPAPL 753 (4).

We agree with tenant that the Civil Court was obligated to afford him a post-judgment opportunity to cure the breach. The RPAPL 753 (4) cure provision is "procedural and remedial in nature" (Nestor v McDowell, 81 NY2d 410, 414 [1993]), and by virtue of its mandatory language it effectively "impress[es] its terms on residential leases" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 27 [1984]). Where, as here, a residential lease violation is readily curable, an opportunity to cure the violation "must be afforded" (e.g. Thompson v 490 W. End Apts. Corp., 252 AD2d 430, 436 [1998] [involving subletting without consent]; 34 Realty LLC v Udoh, 23 Misc 3d 126[A], 2009 NY Slip Op 50520[U] [App Term, 1st Dept 2009] [same]; cf. e.g. Matter of 151-155 Atl. Ave. v Pendry, 308 AD2d 543 [2003] [profiteering by a rent-stabilized tenant is not subject to cure]; Monroe Place Assoc. v Arango, 28 Misc 3d 130[A], 2010 NY Slip Op 51251[U] [App Term, 2d, 11th & 13th Jud Dists 2010] [chronic nonpayment is not subject to cure]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: August 10, 2011

20110810

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