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Vernese Mccurdy, Appellant v. Avis Williams (N.Y.App.Term 05/03/2012)

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 3, 2012

VERNESE MCCURDY, APPELLANT,
v.
AVIS WILLIAMS, RESPONDENT, -AND- "JOHN DOE" AND "JANE DOE," UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ronni Dale Birnbaum, J.), dated September 14, 2009.

McCurdy v Williams

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2012

PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ

The order, insofar as appealed from as limited by the brief, granted the branch of tenant's motion seeking to vacate the warrant and permanently stayed re-issuance of the warrant, and denied landlord's cross motion for an award of use and occupancy.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of tenant's motion seeking to vacate the warrant is denied, the provision permanently staying re-issuance of the warrant is stricken, landlord's cross motion for an award of use and occupancy is granted and the matter is remitted to the Civil Court for a determination of the amount of use and occupancy to be awarded landlord.

In this holdover summary proceeding based upon a refusal to provide access, a final judgment was entered awarding landlord possession and staying the issuance of the warrant for 10 days to allow tenant to cure (see RPAPL 753 [4]). The warrant issued several months later, and tenant subsequently moved to, among other things, vacate the final judgment and warrant, alleging that she had timely cured the lease violation. Landlord cross-moved for, among other things, an award of use and occupancy. Landlord appeals from so much of an order of the Civil Court, entered after two hearings, as, without making any express factual determinations regarding the 10-day cure period, granted the branch of tenant's motion seeking to vacate the warrant and permanently stayed its re-issuance, and denied landlord's cross motion for an award of use and occupancy.

Upon a review of the record, we find that tenant did not cure her breach of the lease, as she failed to provide sufficient access within the 10-day post-judgment cure period to allow landlord to complete the necessary repairs. Accordingly, the branch of her motion seeking to vacate the warrant is denied, and the provision permanently staying the re-issuance of the warrant is stricken. In view of our present determination that the federally subsidized rent-stabilized tenancy terminated, landlord is now entitled to an award of the full amount of use and occupancy that accrued during the holdover period following landlord's termination of the lease (see Zappala v Caputo, 17 Misc 3d 126[A], 2007 NY Slip Op 51808[U] [App term, 9th & 10th Jud Dists 2007]; cf. Clermont York Assoc. v Feher, 31 Misc 3d 10 [App Term, 1st Dept 2011]). Consequently, landlord's cross motion for an award of use and occupancy is granted and the matter is remitted to the Civil Court for a determination of the amount to be awarded landlord.

Weston, J.P., Rios and Aliotta, JJ., concur. Decision Date: May 03, 2012

20120503

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