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Peabody Webster Holdings, LLC v. M. Fine Lumber Co.

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


March 29, 2013

PEABODY WEBSTER HOLDINGS, LLC,
APPELLANT,
v.
M. FINE LUMBER CO., INC.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 24, 2012.

Peabody Webster Holdings, LLC v. M. Fine Lbr. Co., Inc.

Decided on March 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 SOLOMON, JJ

The order conditionally granted tenant's motion to stay the execution of a warrant in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this commercial nonpayment proceeding, the parties stipulated, on September 6, 2011, that tenant's motion to vacate a default final judgment and warrant would be granted to the extent of staying the execution of the warrant to November 14, 2011 for tenant to make scheduled payments totaling $81,851.50, with the last payment of $8,107 being due on November 14, 2011. Tenant made all the payments but the last, of which it paid only $4,000, before landlord gave tenant a five days' notice of default as provided in the stipulation. Thereafter, tenant paid $4,107.80 on December 15, 2011 and $5,000 on January 3, 2012. Landlord accepted these payments and applied them toward partial payment of December 2011 and January 2012 rent, respectively. Tenant thereafter moved to stay the execution of the warrant to allow it more time to make the payment due under the stipulation. Landlord opposed the motion, arguing, among other things, that the stipulation permitted it to apply tenant's payments after October 2011 toward current rents first and that real estate taxes of $23,089.52 had become due on January 1, 2012, leaving tenant with a new arrears balance of $48,206.46. By order dated January 24, 2012, the Civil Court granted tenant's motion on condition tenant make scheduled payments toward the arrears and current rents.

We affirm, albeit on a different basis than the Civil Court relied upon. The stipulation stayed the execution of the warrant until November 14, 2011 for tenant to make scheduled payments. When tenant defaulted in timely making the last payment, due by November 14, 2011, landlord had the right to enforce the stipulation and execute the warrant of eviction following the giving of five days' notice of default. Landlord also had the option not to enforce the stipulation and to continue to accept rent payments from tenant. However, landlord could not do both. Landlord's election to continue to accept payments from tenant after November 14, 2011 and to apply them toward December 2011 and January 2012 rents, was inconsistent with its right to execute the warrant and vitiated the warrant.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 29, 2013

20130329

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