Opinion
Index No. LT-301503-22/NY
02-14-2023
1697 Amsterdam Associates LLC, Petitioner, v. Ali Saeed, 145 TOBACCO SHOP CORP., "XYZ CORP.", Respondents.
Attorney for Petitioner: Kaplain & Duval, LLP Attorneys for Respondents: Green & Cohen PC
Unpublished Opinion
Attorney for Petitioner: Kaplain & Duval, LLP
Attorneys for Respondents: Green & Cohen PC
Ilana J. Marcus, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Papers Numbered
Order to Show Cause, Affidavit in Support, Exhibits 1
Affirmation and Affidavit in Opposition, Exhibits 2
Petitioner commenced this nonpayment commercial landlord-tenant matter by filing its notice of petition and petition on February 4, 2022 (see NYSCEF Doc. Nos. 1, 2). By decision and order dated November 14, 2022, the court awarded petitioner a final judgment of possession and a warrant of eviction to issue forthwith, as a result of respondents' failure to answer or appear (see NYSCEF Doc. No. 12). Respondent now makes the instant Order to Show Cause seeking to stay the enforcement of any judgment, and the execution of the warrant of eviction by petitioner, its agents, and any New York City Marshal or Sheriff. Petitioner opposes.
Petitioner served respondent with a rent demand by substitute service on August 12, 2021 (see NYSCEF Doc. No. 1). The rent demand, dated August 9, 2021, stated respondent must pay petitioner rent arrears in the amount of $26,877.39 within 14 days from the day of service of the notice (see id.). When respondent failed to fully remit payment for these arrears, petitioner filed its notice of petition and petition on February 4, 2022 (see id.). The petition stated that as of February 2022, respondent owed arrears in the amount of $52,070.29 (see id.).
In the instant order to show cause, respondent states "I will tender good funds to satisfy the Petition on the date the case is noticed to be heard" (Saeed Aff, ¶10). Respondent believes it owes rent arrears of $6,568.33 to satisfy the petition (see id.). Respondent also argues that petitioner's rent demand asserts a bad faith approximation of rent arrears owed (see id., ¶¶14, 16).
In opposition, petitioner submits its rent ledger (see NYSCEF Doc. No. 42). The ledger indicates that as of August 1, 2021 (approximately 9 days before the date of petitioner's rent demand), respondent owed arrears in the amount of $30,729.02 (see id.). Petitioner's rent ledger also shows respondent made a payment of $7,000.00 on or about August 17, 2021 (check no. 1538), and a payment of $6,000.00 on or about September 20, 2021 (check no. 1539) (see id.). Petitioner continued to charge respondent for rent and late fees subsequent to serving respondent with its rent demand (see id.). Petitioner filed its notice of petition and petition on February 4, 2022, alleging rental arrears owed in the amount of $52,070.29 (see NYSCEF Doc. No. 1). On or about February 21, 2022, respondent made a payment in the amount of $5,000.00 (check no. 1554) (see NYSCEF Doc. No. 42). Petitioner continued to charge respondent for rent due and concomitant fees (see id.). On or about March 18, 2022, respondent made a payment in the amount of $5,000.00 (check no. 1557) (see id.). Petitioner continued to charge respondent for rent due and concomitant fees (see id.). On or about October 31, 2022, respondent made a payment in the amount of $16,091.64 (by bank check no. 1567100016) (see id.). This court awarded petitioner a final judgment of possession and warrant of eviction on November 14, 2022 (see NYSCEF Doc. No. 12). To date, respondent remains in possession.
Section 749(3) of RPAPL states:
In a judgment for non-payment of rent, the court shall vacate a warrant upon tender or deposit with the court of the full rent due at any time prior to its execution, unless the petitioner establishes that the tenant withheld the rent due in bad faith. Petitioner may recover by action any sum of money which was payable at the time when the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued....
"The plain language of the statute makes it clear that the rent amounts owed as contemplated by [RPAPL 749(3)] are for the period of time before a warrant of eviction is issued" (636 Apartment Assocs., JV v Mayo, 69 Misc.3d 878 [City Ct, Mt. Vernon 2020]). Petitioner's rent ledger indicates that as of November 1, 2022, respondent owed arrears in the amount of $59,825.26 (see NYSCEF Doc. No. 42). All of respondent's prior payments were accounted for in petitioner's ledger (see id.). Therefore, respondent must tender $59,825.26 to petitioner to vacate the warrant of eviction pursuant to RPAPL 749(3).
Respondent made one additional payment of $4,410.32 for December 2022 rent on or about December 6, 2022 (see id.; NYSCEF Doc. No. 17). However, a tenant's payment of rent after the issuance of a warrant does not automatically result in the vacatur of the warrant, "and, in the absence of good cause shown, the Court should not effectuate vacatur" (New York City Hous. Auth. v Torres, 61 A.D.2d 681 [1st Dept 1978] citing RPAPL 749[1], 749[3]). Here, respondent fails to articulate good cause to vacate the warrant.
Furthermore, respondent's argument that petitioner's rent demand was a bad faith approximation is without merit. A rent demand need only provide "tenant notice of the particular periods for which rent and other charges were due and the approximate good faith amount claimed for each such period" (Almark Holdings Co., LLC v Pizza147 NY LLC, 77 Misc.3d 130 (A) [App Term, 1st Dept 2022]). Here, any discrepancy in petitioner's rent demand was de minimus and does not render the predicate notice jurisdictionally defective (see id.).
Accordingly, it is hereby
ORDERED, that respondent's Order to Show Cause is granted to the extent that the execution of the warrant of eviction is stayed 10 days for respondent to tender $59,825.26 to petitioner by bank check or wire transfer, and petitioner must receive payment on or before February 24, 2022; upon payment, respondent shall move this court by order to show cause to vacate the warrant of eviction, annexing thereto proof of such payment; if payment is not made and received by February 24, 2022, and if respondent fails to move this court by order to show cause with proof of such payment by February 24, 2022, all stays are lifted and petitioner may proceed forthwith with execution of its warrant of eviction.
This constitutes the decision and order of the court.