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610 LLC v. Joseph Hernandez and Marina Hernandez

New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 29, 2011

610 LLC,
PETITIONER-LANDLORD-APPELLANT,
v.
JOSEPH HERNANDEZ AND MARINA HERNANDEZ,
RESPONDENTS-TENANTS-RESPONDENTS.

Per curiam.

610 LLC v Hernandez

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 29, 2011

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

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), dated July 13, 2010, which granted tenants' motion, in effect, to stay execution of a warrant of eviction in a holdover summary proceeding.

Order (Joseph E. Capella, J.), dated July 13, 2010, affirmed, without costs.

In the circumstances of this case, where it is undisputed that tenants fully complied with the core occupancy and drug related requirements of the "so-ordered" stipulation settling the underlying holdover summary proceeding, the court did not abuse its discretion in excusing tenants' delays in tendering use and occupation due under the stipulation. Particularly in housing matters where a forfeiture of shelter is implicated, "a default of this nature should be ... measured against the harsh results which would obtain upon literal enforcement of the default provision in the stipulation" (Bank of New York v Forlini, 220 AD2d 377, 378 [1995], quoted in 361 W. 121st Hous. Dev. Fund Corp. v Frazier, 26 Misc 3d 46, 47-48 [2009]). Landlord's holdover claims having been adequately redressed by the terms of the settlement stipulation and tenants' acknowledged compliance therewith, we agree that the payment defaults here involved, ultimately remedied, were not so prejudicial to landlord as to require the loss of the long-term stabilized tenancy.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: November 29, 2011

20111129

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