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598 Marcy Avenue Associates LLC v. Othman

Civil Court of the City of New York, Kings County

December 11, 2013

598 Marcy Avenue Associates LLC, Petitioner,
Alex Othman, Respondent.

Unpublished Opinion

Petitioner's counsel Daniel Gewirtz

Respondent's counsel Jaime Lathrop

Gary F. Marton, J.

Petitioner moves for an order allowing the re-execution of a warrant of eviction and related relief. After considering the testimony and the other evidence at the hearing herein on December 3, 2013 the court makes the following findings of fact, reaches the following conclusions of law, and denies the motion.

Petitioner began this nonpayment proceeding alleging that there were rent arrears of $4, 050.00 that had accrued through April 30, 2013 at a monthly rate of $1, 350.00. Respondent denied the same in a pro se answer. On the return date of May 20, 2013 the parties stipulated to adjourn the proceeding to June 26, 2013.

On June 26, 2013 respondent did not appear and a default judgment for $4, 050.00 was entered. A warrant of eviction issued on July 29, 2013 and thereafter petitioner had a marshal's notice of eviction served. Respondent moved for relief but he did not appear on the motion's September 9, 2013 return date and the motion was denied for nonappearance.

On October 11, 2013 the warrant was executed, respondent was evicted, and possession of the premises was restored to petitioner. Later that day respondent moved by order to show cause to be restored to possession, but he did not appear on the motion's October 16, 2013 return and the motion was denied for nonappearance.

However, as the testimony at the hearing on December 3, 2013 made clear, during the morning of October 16, 2013 respondent telephoned petitioner's office. He spoke to a woman whose name he did not learn, and whose authority to act on petitioner's behalf is unknown. He told her that he had $6, 750.00. She told him that the superintendent, Mamerto Rodriguez, would meet him at the building to take the money.

On the basis of this testimony the court finds that during this conversation there was no mention of the eviction or of reinstatement of the tenancy. The court also finds that the superintendent was known to respondent as someone who often collected rent from the tenants at the building. The court finds that a payment then of $6, 750.00 would have satisfied rent accrued through June 30, 2013 but would have left unpaid rent accruing thereafter as well the legal and marshal's fees and other costs of the eviction.

The court finds further that on October 16, 2013 Rodriguez met respondent just outside of the apartment, took from respondent $6, 750.00 in money orders, allowed or did not interfere with respondent entering into the apartment, and then took the money orders to petitioner's office [1]. About an hour later Rodriguez returned to the premises, told respondent that taking the money orders had been a mistake, and that respondent should leave the premises. Respondent declined this request.

The court finds as well that on October 18, 2013 respondent moved by order to show cause to be restored to possession. Apparently — the testimony on December 3, 2013 on this point was a bit confusing but the court finds that greater clarity is not needed — petitioner called the police earlier that day and asked them to remove respondent from the premises; the police went to the premises but, after some discussion with respondent, declined to remove him, and they may have told him to go to court. In any event, on the show cause order's return date of October 22, 2013, by a decision and order, the court denied the motion "as moot inasmuch as respondent states that he is now in possession of the premises."

Petitioner, by an order to show cause sought later that day, moved for an order allowing re-execution of the warrant and related relief. Respondent, appearing for the first time by counsel, opposed the motion. By an order made on November 19, 2013 the court ruled that a hearing should be held to determine, among other things, whether "super restored resp. to possession w/auth of pet." The case was sent from a pre-trial part to a trial assignment part and this court conducted on December 3, 2013 the aforementioned hearing.

The court finds that respondent tendered the $6, 750.00 to satisfy the judgment, to pay two months of post-judgment rent, to be restored to possession, and to have his tenancy reinstated. The court finds that petitioner did not intend to reinstate the tenancy, that Rodriguez was sent to the building only to collect the $6, 750.00, and that petitioner did not authorize Rodriguez to negotiate or make any agreement with respondent [2]. From petitioner's point of view, the tender of $6, 750.00 was the payment of a debt, not a payment of rent, and respondent's post-eviction occupancy of the premises was as a trespasser.

The court denies petitioner's motion. Execution of the warrant terminated the proceeding and the court lacks the authority to order the re-execution of the warrant. Binding authority makes this plain: "Once a warrant of eviction has been executed, the tenant evicted and the landlord placed in possession, the summary proceeding is terminated. If the tenant as a trespasser thereafter re-enters into possession of the premises, the marshal cannot re-execute the warrant of eviction and re-evict him." Sweet v Sanella, 46 A.D.2d 688, 689 (2nd Dep't, 1974).

In light of the foregoing, the court finds it unnecessary to address both petitioner's other claims for relief and respondent's contention that petitioner, by not offering to return the $6, 750.00, had ratified or acquiesced in respondent's resumption of occupancy.

The court will mail copies of this decision and order to the parties.

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