Opinion
570576/03, 03-365/366.
Decided July 27, 2004.
Tenant appeals from an order of the Civil Court, New York County, dated June 30, 2003 (Cyril K. Bedford, J.) denying her motion to stay execution of the warrant and extend her time to comply with the terms of the parties' stipulation in a holdover summary proceeding.
Order dated June 30, 2003 (Cyril K. Bedford, J.) reversed, without costs, and tenant's motion is granted to the extent of staying execution of the warrant.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
In settlement of a chronic nonpayment holdover proceeding, tenant consented to the entry of judgment, with execution of the warrant stayed provided she paid her share of the rent by the tenth day of the month during a period of probation ending February 2004. The parties further agreed that "the court shall retain discretion to sign an OSC for legally sufficient cause". The documentary evidence shows that tenant obtained money orders for the June 2003 payment on June 3. However, because of a scrivener's error, the payment was incorrectly posted to 2307 Coney Island Avenue, Brooklyn, instead of number 2207 and, in consequence, not timely received. This obviously inadvertent lapse is excusable pursuant to the court's supervisory power over enforcement of so-ordered stipulations (see Malvin v. Schwartz, 65 AD2d 769, affd 48 NY2d 693). Particularly in housing matters where a forfeiture of shelter is implicated, a default of this nature should be ". . . measured against the harsh result which would obtain upon literal enforcement of the default provision in the stipulation" (Bank of New York v. Forlini, 220 AD2d 377, 378; cf 1029 Sixth, LLC v. Guity Fashion Corp., 777 NYS2d 122 [App Div 1st Dept] [strict enforcement of surrender agreement for commercial space]). So far as appears, tenant has complied with her payment obligations during the period of the stay granted by this court, and the probationary period has now expired.
This constitutes the decision and order of the court.