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First Mwh & G Incorporation v. Monique Gilbert

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 13, 2012

FIRST MWH & G INCORPORATION,
RESPONDENT, --
v.
MONIQUE GILBERT,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), entered July 18, 2011.

First MWH & G Incorporation v Gilbert

Decided on July 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The order denied tenant's motion, in effect, to further stay the execution of a warrant.

ORDERED that the order is reversed, without costs, and tenant's motion, in effect, to further stay the execution of the warrant is granted.

In this nonpayment proceeding, the Civil Court, by order dated June 16, 2011, stayed the execution of a warrant until June 30, 2011 for tenant to pay $986, without further extensions. In support of an application for an order to show cause seeking, in effect, to further stay the execution of the warrant, tenant, on July 8, 2011, showed the court money orders for the full $986 and asserted that she had had the money to give to landlord but that he had not come to collect the money until July 7, 2011; that she had no way to contact landlord unless he stopped by; and that landlord had refused to accept the money on July 7, 2011 because her tender did not include the July rent of $493. Landlord did not submit written opposition to tenant's motion. Without holding a hearing, the Civil Court, by order entered July 18, 2011, denied tenant's motion. The court noted, among other things, that one of the money orders that tenant had with her that day for $493 was dated July 16, 2011, and one for $493 was dated July 6, 2011, thus, in the court's view, belying tenant's claim that she had had the money to give to landlord in June.

Tenant's sworn assertion that she was in compliance with the June 16, 2011 order and her production, on July 8, 2011, of money orders for the full amount due, raised an issue of credibility which should not have been determined without a hearing (see Matter of Gelrod v Levine, 24 AD2d 756 [1965]). However, in view of tenant's production, on July 8, 2011, of the money orders for the entire amount due under the June 16, 2011 order, we find that tenant was in substantial compliance with the order and grant her motion, in effect, to further stay the execution of the warrant.

We note that the $986 in question was deposited with the Civil Court on July 21, 2011.

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

Decision Date: July 13, 2012

20120713

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