Opinion
2006-2106 K C.
Decided December 4, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated December 13, 2006. The order denied tenant's motion seeking, in effect, to stay execution of a warrant.
Order reversed without costs and matter remanded to the court below for a determination de novo, following a hearing, of tenant's motion seeking, in effect, to stay execution of the warrant.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
In this chronic-nonpayment holdover proceeding, tenant pro se and landlord, through its attorney, entered into a stipulation of settlement in October 2005, pursuant to which landlord was granted a final judgment of possession, a money judgment and a warrant of eviction. The execution of the warrant was stayed upon the condition that tenant make specified timely payments of the rental arrears through March 2006 and the ongoing rent through April 2007. It is undisputed that tenant tendered payments to landlord for each month through November 2006. However, she acknowledged that from July 2006 to November 2006, she paid the rent at the end of each month, rather than by the fifth day of each month as required by the stipulation of settlement. In support of her order to show cause seeking, in effect, to stay execution of the warrant, tenant stated at oral argument that because of surgery on her leg, she had to go on disability and wait until she received sufficient disability checks to pay the rent. She further asserted that landlord's representative had agreed to allow her to pay the rent at the end of the month and, as a result, had accepted the late payments from July through November 2006. Although landlord's attorney appeared at oral argument, landlord's agent did not appear. By order dated December 13, 2006, the court below denied tenant's motion, finding that tenant acknowledged paying the rent late and that she had breached the stipulation. Tenant's appeal ensued.
Under the circumstances presented, the motion court should not have denied tenant's motion without affording her a hearing at which the court could test the credibility of tenant's claim that landlord had permitted her to pay the rent late and had accepted her late payments. Accordingly, the order is reversed and the matter remanded for a determination de novo of tenant's motion following a hearing.
Pesce, P.J., and Rios, J., concur.
Weston Patterson, J., dissents in a separate memorandum.
In my view, the court below providently exercised its discretion in denying tenant's motion seeking, in effect, to stay execution of the warrant, since tenant failed to comply with the terms of the so-ordered stipulation. Accordingly, I respectfully dissent.
On October 14, 2005, tenant negotiated, in open court, a binding stipulation of settlement whereby she agreed, among other things, to pay the rent "by the 5th business day of each month," beginning in April 2006. The stipulation further provided that in the event tenant failed to make timely payments, the warrant of eviction would be executed. Despite this agreement, tenant failed to make timely payments and a warrant of eviction was issued on November 13, 2006.
On December 5, 2006, tenant brought an order to show cause seeking, in effect, to stay execution of the warrant. At oral argument on the motion, tenant maintained that landlord had permitted her to make payments at the end of the month while she was out of work, and that she had been making late payments since July 2006. While landlord's attorney acknowledged that landlord had "[tried] to work" with tenant, he noted that by October, tenant had waited until the 29th to pay her rent and that she failed to pay December's rent. Landlord's attorney further noted that since 2001, tenant had chronically failed to pay her rent in a timely manner, requiring numerous court appearances. The court below reminded tenant that it had reviewed the stipulation with her "word by word" and made "it extremely clear" that if she did not abide by the agreement "to the letter," she would be evicted. Accordingly, the court denied tenant's motion, concluding that tenant's admitted failure to pay the rent timely constituted a breach of the October 14, 2005 stipulation.
Notwithstanding tenant's failure to comply with the stipulation, the majority reverses and remands the matter for a hearing to determine whether landlord had permitted tenant to pay the rent late. Other than tenant's unsworn, self-serving allegations that landlord had accepted late payments, the majority cites to nothing that would justify a hearing. Indeed, tenant's admitted failure to honor the terms of the so-ordered stipulation is, by itself, sufficient to deny her motion summarily. In any event, tenant had ample opportunity to be heard at oral argument on the motion and did not request a hearing. In these circumstances, and in the absence of any proof that the stipulation was procured by fraud, collusion, accident or mistake, I conclude that, as a matter of law, no good cause exists to stay execution of the warrant of eviction ( see Hallock v State of New York, 64 NY2d 224; City of New York v 130/40 Essex St. Dev. Corp., 302 AD2d 292).
Accordingly, I vote to affirm the order of the court below.