Opinion
77069/16
11-23-2016
GG Rentals LLC, Petitioner, v. Johnny Chalas, Respondent.
Petitioner's counsel Azoulay Weiss, LLP 864 Willis Avenue - suite 6 Albertson, NY 11507 (516) 739-6200 Respondent pro se Johnny Chalas
Petitioner's counsel Azoulay Weiss, LLP 864 Willis Avenue - suite 6 Albertson, NY 11507 (516) 739-6200 Respondent pro se Johnny Chalas Gary F. Marton, J.
Respondent moves for a stay of the execution of a warrant of eviction. The motion is granted.
In this nonpayment proceeding, by a stipulation "so ordered" on the first return date of July 26, 2016, the parties agreed that there were rent arrears of $12,034.00, that these would be paid by September 5, 2016, and that current rent would be paid as it came due.
Respondent paid the current rent but not the arrears. Petitioner had a marshal's notice of eviction served. By an order to show cause sought on October 17, 2016 respondent moved for relief. In support he averred that he was waiting for the City of New York's Human Resources Administration ("HRA") to act on his application for assistance. By a decision and order dated October 25, 2016 the court denied the motion because he did not have the approval and could not show that the arrears, by then slightly reduced to $11,942.00, would be paid.
Now, by an order to show cause sought on November 7, 2016, respondent moves again for relief. He shows that all arrears can be paid immediately because $11,942.00 in HRA-issued checks are available for pick-up and he tenders the remaining balance, i.e., November's rent of $1,706.00.
Petitioner refuses the tender and opposes the motion on the ground that respondent's difficulty in obtaining funds does not excuse his failure to pay timely. In support petitioner cites Chelsea 19 Assoc. v James, 67 AD3d 601 (1st Dep't, 2009).
In Chelsea 19 the court affirmed the reversal of the trial court's vacatur, upon the tenant's tender of all rent due, of the tenant's default on a stipulation of settlement of that nonpayment proceeding. However, as explicitly noted by the reversing court, there had been "extensive and unexplained defaults, both prior to and during the pendency of [the] 'summary' proceeding." Chelsea 19 Associates v James, 21 Misc 3d 129(A) (App Term, 1st Dep't, 2008), aff'd, 67 AD3d 601 (1st Dep't, 2009). Here, in contrast, there have not been extensive and unexplained defaults in the payment of rent. Instead, while respondent did not pay the arrears timely, he paid the current rent as it came due and, so far as appears, applied promptly to HRA for assistance. Why HRA took as much time as it did to grant relief in conformity with that agency's statutory mandate remains unknown. See also, Harvey 1390 LLC v Bodenheim, 96 AD3d 664 (1st Dep't, 2012), where the court granted a stay of execution of the warrant in a nonpayment proceeding and wrote: "Nor does [Chelsea 19] stand for the proposition that a court may never consider a tenant's difficulty in obtaining funds when determining, under all the circumstances, whether good cause exists to stay an eviction warrant. These cases involve fact-sensitive inquiries, and must be decided after review of all the circumstances, including the extent of the delay, the length and nature of the tenancy, the amount of the default and the particular tenant's history, as well as a balancing of the equities of the parties [citation omitted]." (At 665-66).
The court would prefer to end this case by enjoining petitioner to accept a tender of respondent's and HRA's checks, and then vacating the judgment and dismissing the proceeding, thereby removing from respondent's credit record the blemish of an outstanding judgment for money. However, for better or for worse, this court lacks subject matter jurisdiction to do that, 615 Nostrand Avenue Corp. v Roach, 15 Misc 3d 1, 5-6 (App Term, 2nd Dep't, 2006) ("The court's direction to landlord to accept tenant's tender is stricken because the court did not have jurisdiction to enjoin the landlord to accept such funds [citations omitted] and the landlord was within its rights in refusing to do so.").
Accordingly, the court grants respondent's motion by permanently staying execution of the warrant with respect to any rent due through and including November 30, 2016.
The court will mail copies of the decision and order to the parties. Dated:Brooklyn, NY November 23, 2016 _________________________________