Opinion
61088 LT 2000.
Decided January 12, 2004.
A judgment based on Petitioner's nonpayment proceeding was entered against Respondents on April 26, 2001, and a warrant of eviction was issued pursuant thereto. The warrant was not executed because of a stay of execution issued because of various rearguments and appeals, until the Appellate Division denied Respondents' motion for leave to appeal on October 14, 2003.
Thereafter, when Petitioner attempted to execute on its warrant, it was informed by the clerk that the marshal to whom the original warrant was issued had retired and a new warrant would need to be ordered. On November 6, 2003, the clerk issued a new warrant to an active marshal. The warrant sought both possession of the premises and a money judgment in accordance with the initial judgment. As of the date of the re-issuance of the warrant Respondents had not satisfied the judgment.
On November 13, 2003, Respondents attorney paid two certified checks to the marshal for an amount the Petitioner concedes, for the purposes of this motion only, to be full payment of the judgment. Because of the complexity of the case, the actual calculations might evidence a different sum, but that amount is not directly pertinent to the issues presented to the court by this motion.
On December 5, 2003, Respondents were evicted. On that same day, after Respondents were no longer in possession, the parties appeared before this court on a motion to vacate the warrant of eviction, which was determined to be moot. Thereafter, Respondents brought another motion to vacate the eviction and restore them to possession of the premises. That motion was argued on December 24, 2003, and the parties submitted additional memoranda in support of their positions.
Petitioner posits that once all appeals had been argued and exhausted, the initial judgment became final and fully enforceable. Further, Petitioner maintains that payment of the judgment after issuance of the warrant is insufficient, in and of itself, to vacate the warrant and restore Respondents to possession. Respondents argue, inter alia, that the warrant was issued pursuant to a fraudulent document submitted to the court by Petitioner, that the new warrant was defective, and that payment of the judgment amount prior to the execution of the warrant acts to nullify the warrant.
First, Respondents argument that the warrant was issued based on fraudulent documentation, was dismissed by the original trial court when presented in a motion to reargue, and that decision was affirmed on appeal. Therefore, there is no basis for this court to re-examine arguments already found unpersuasive by the appellate court.
Respondents' second argument, that the warrant is defective because the address appearing therein is the one taken from the document they allege is fraudulent, also must fail. Because the trial and appellate courts have previously concluded that the document does form one of the bases for the proceeding, this court cannot and will not overturn that conclusion based on arguments previously made and dismissed.
Respondents' third argument, however, cannot be so easily jettisoned.
The Civil Court is authorized, pursuant to section 212 of the Civil Court Act and section 5015(d) of the CPLR, to restore a tenant to possession even after execution of a warrant in appropriate circumstances. 467 42nd Street, Inc. V. Decker, 186 Misc. 2d 439, 719 N.Y.S. 2d 798 (2nd Dept. 2000). Case law has determined that the type of circumstances that may lead to such vacatur may include a demonstration of palpable fraud or the failure of the landlord to accept a proper tender of rent prior to the issuance of the warrant. Kohl v. Fusco, 164 Misc. 2d 431, 624 N.Y.S. 2d 509 (Bronx County 1994). However, in the instant case no such showing has been made.
As stated above, the appellate court has determined that the documents presented by Petitioner are valid, and no question exists as to Respondents tendering of payment prior to the issuance of the warrant. Consequently, this court is confronted with the interesting question of the effect of payment of the rent by a tenant to the marshal after issuance of the warrant but prior to execution of the same.
Section 749(3) of RPAPL states, in pertinent part, that The issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant, but nothing herein shall deprive the court of the power to vacate such warrant for good cause shown prior to the execution thereof.
In construing this statute, the courts have consistently held that the payment of rent arrears, in and of itself, does not constitute good cause to vacate the warrant of eviction after its issuance. 32-05 Newton Avenue Associates v. Hailazopoulos, 168 Misc. 2d 125, 645 N.Y.S. 2d 260 (2nd Dept. 1996). Furthermore, once the warrant is issued, the landlord cannot be compelled thereafter to accept the rent. Novick v. Hall, 70 Misc. 2d 641, 334 N.Y.S. 2d 698 (New York County 1972).
However, if the landlord does accept the rent after issuance of the warrant but prior to its execution, under certain circumstances, that acceptance might act to revive the landlord-tenant relationship. The controlling factor is the intent of the landlord when he accepts such rent arrears. J.A.R. Management Corp. v. Foster, 109 Misc. 2d 693, 442 N.Y.S. 2d 723 (2nd Dept. 1980). In the absence of competent testimony to adduce that the landlord intended to revive the tenancy, the acceptance of rent arrears alone will not act to vacate a warrant of eviction. Id. The payment of rent arrears after issuance of the warrant does not result in the automatic vacatur of the warrant, and in the absence of good cause shown, the court should not effectuate vacatur. 32-05 Newton Avenue Associates v. Hailazopoulos, op. cit.
In the instant case, not a scintilla of evidence has been presented to indicate that Petitioner intended to revive the tenancy when the marshal accepted the judgment amount from Respondent on its behalf. Consequently, this court determines that Respondents' payment of the judgment amount after issuance of the warrant does not act as an automatic vacatur of that warrant. Respondent must also demonstrate to the court that there is good cause, in addition to complete payment, that would support a vacation of the warrant. Sanford Avenue realty Corp. v. Hutchinson, N.Y.L.J., 5/25/89, p. 29, col 3 (App. Term, 2d and 11th Jud. Dists.).
All of Respondents' arguments with respect to "good cause" for restoration to the premises concern the documents that have already been adjudicated to be valid. Therefore, Respondents' motion to be restored to possession is denied.
Respondents have also requested to be permitted access to retrieve personal possessions left at the site. This the court grants, with the dates and times to be worked out by the parties to their mutual convenience.