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Brooks Shopping Center, LLC v. Pizza Mania

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 21, 2012

BROOKS SHOPPING CENTER, LLC, RESPONDENT,
v.
PIZZA MANIA, INC. DOING BUSINESS AS BRICK OVEN PIZZA MANIA, APPELLANT.

Appeal from an order of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered January 6, 2011.

Brooks Shopping Ctr., LLC v Pizza Mania, Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2012

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The order, insofar as appealed from, denied tenant's motion, in effect, to vacate a warrant of eviction and to stay enforcement of a final judgment's monetary award, in a commercial nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and tenant's motion, in effect, to vacate the warrant of eviction and to stay enforcement of the final judgment's monetary award is granted.

In this commercial nonpayment summary proceeding, the parties stipulated, on May 27, 2009, that landlord would have a final judgment awarding it possession and the sum of $122,093.69, together with a warrant, which would be stayed for tenant to make all specified rent payments required by the stipulation. On August 5, 2010, landlord submitted an affidavit of tenant's noncompliance with the stipulation, based, in part, on unpaid after-accruing rent, and, in part, upon tenant's failure to pay the 2009 common area maintenance (CAM) charges. Pursuant to the affidavit, a final judgment was entered on August 23, 2010, awarding landlord possession and the sum of $122,093.69, and a warrant issued. Thereafter, tenant moved, in effect, to vacate the warrant and to stay enforcement of the final judgment's monetary award, alleging, among other things, that it had tendered all the rent payments due under the stipulation to date. In its opposing papers, landlord conceded that tenant had made all the rent payments required under the stipulation to date but asserted that it should be allowed to execute the warrant because tenant had, among other things, not made the payments on time and had failed to pay certain CAM charges. By order entered January 6, 2011, insofar as appealed from, the City Court denied tenant's motion.

As the stipulation did not include a provision for the payment of the CAM charges, tenant's failure to pay the charges did not violate the stipulation. Moreover, although one of tenant's after-accruing rent payments was not made timely, landlord conceded that tenant had made all the rent payments required as of the date of tenant's motion (the CAM charge issue aside).

In 41st Ave. Realty Assoc., LLC v Choices Women's Med. Ctr. (188 Misc 2d 274, 276 [App Term, 2d & 11th Jud Dists 2001]), which also involved a commercial nonpayment summary proceeding, the court stated: "It is the opinion of this court that tenant has presented a sufficient showing of good cause to justify the vacatur of the warrant under RPAPL 749 (3). This is not a case such as those where this court has found that tenant offered no excuse for late payment and where the landlord evinced no intent to permit tenant to continue in possession . . . The underlying proceeding herein was not a simple case of a tenant refusing to pay rent. There was a good faith dispute over which party to the lease was obligated to pay the fire guard coverage. The stipulation settling the dispute provided for a payment schedule . . . and rent payments were tendered by tenant. There is no dispute that all rent is paid to date . . . Courts abhor forfeitures and equity may intervene to prevent a forfeiture of a valuable leasehold where tenant has made good faith improvements, landlord is not harmed and tenant would sustain a substantial loss."

It is well settled that a stipulation's enforcement is "subject to the supervision of the courts" (Malvin v Schwartz, 65 AD2d 769, 769 [1978], affd 48 NY2d 693 [1979]) and that "a court may relieve a party from the consequences of enforcement where such would be unjust or inequitable or permit the other party to gain an unconscionable advantage'" (Ribner v Ribisi, 10 Misc 3d 144[A], 2006 NY Slip Op 50130[U] [App Term, 9th & 10th Jud Dists 2006], quoting Bank of NY v Forlini, 220 AD2d 377, 378 [1995]). Here, as of the date of tenant's motion, tenant had substantially complied with the stipulation's terms with respect to the timeliness of the payment of the after-accruing rent (e.g. Burruano v Burruano, 11 Misc 3d 135[A], 2006 NY Slip Op 50475[U] [App Term, 9th & 10th Jud Dists 2006]). While tenant's August 2010 rent payment was received six days after tenant's receipt of a five-day notice to cure served by landlord, the default was minimal, and good cause was shown to justify vacating the warrant of eviction and staying enforcement of the final judgment's monetary award.

Accordingly, the order, insofar as appealed from, is reversed, and tenant's motion, in effect, to vacate the warrant of eviction and to stay enforcement of the final judgment's monetary award is granted.

The decision and order of this court entered herein on August 6, 2012 (36 Misc 3d 142[A], 2012 NY Slip Op 51504[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision Date: December 21, 2012

20121221

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