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Avalon Riverview I, LLC, Appellant v. Riverview Restaurant

January 14, 2013

AVALON RIVERVIEW I, LLC, APPELLANT, --
v.
RIVERVIEW RESTAURANT, INC. FORMERLY KNOWN AS YTT, LLC,
RESPONDENT,
-AND- "XYZ CORP.," UNDERTENANT.



Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered March 7, 2011.

Avalon Riverview I, LLC v Riverview Rest., Inc.

Decided on January 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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, insofar as appealed from, conditionally granted the branch of tenant's motion seeking to stay the execution of a warrant in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this commercial holdover proceeding premised on the chronic nonpayment of rent, landlord appeals from so much of an order of the Civil Court as stayed the execution of a warrant for 10 days to allow tenant time to cure a default in making payment required by a stipulation of settlement.

In 2008, tenant agreed to a final judgment of possession and a warrant of eviction which would be stayed through 2023 provided that tenant remain current in its rent and ancillary obligations. When tenant missed various payments, landlord sought to accelerate the execution of the warrant. Tenant moved to stay the execution of the warrant, and to vacate the final judgment and warrant. The court denied the branch of the motion seeking vacatur, but stayed the execution of the warrant on condition that tenant satisfy the outstanding arrears. Landlord appeals from so much of the order as conditionally granted tenant a stay, and we affirm.

It is well settled that the enforcement of a court-ordered stipulation of settlement is "subject to the supervision of the courts" (Malvin v Schwartz, 65 AD2d 769, 769 [1978], affd 48 NY2d 693 [1979]), especially where the enforcement of the stipulation would be unjust or inequitable (Ribner v Ribisi,10 Misc 3d 144[A], 2006 NY Slip Op 50130[U] [App Term, 9th & 10th Jud Dists 2006]). Here, tenant has expended significant sums to renovate the premises and it employs a staff of over 20 employees. Moreover, a forfeiture of a leasehold, where a tenant has offered to make a landlord whole, is to be avoided (J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392 [1977]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Weston, J., dissents in a separate ...


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