Opinion
Index No. LT-3273-19
04-06-2022
A Caryl Avenue LLC, Petitioner v. Michael Rabbit, Respondent
Legal Services of the Hudson Valley, Abigail Katz Pearlman, Esq. Andrew M. Romano, Esq.
Unpublished Opinion
Legal Services of the Hudson Valley, Abigail Katz Pearlman, Esq.
Andrew M. Romano, Esq.
EVAN INLAW, J.
The following papers numbered 1 to 4 were read and considered on the Respondent's Order to Show Cause seeking to vacate the judgment and warrant.
| Papers | Numbered |
| Order to Show Cause and Affidavits Annexed |
|
| Affirmation/Affidavits in Opposition |
|
| Replying Affidavits |
|
| Filed Papers |
|
The above entitled proceeding first appeared on the court's calendar on August 6, 2019. Following several adjournments, the matter was settled by a "So Ordered" stipulation on September 11, 2019.
However, Petitioner was awarded a Warrant of Eviction on November 25, 2019, for Respondent's default on the parties' stipulation. Respondent filed an Order to Show Cause which was denied on March 6, 2020 with a stay to March 27, 2020, no further notice required.
Administrative Order 160A/20 issued by Judge Lawrence Marks in response to the global COVID-19 pandemic mandated all matters filed before March 17, 2020 be restored to the calendar for a status conference. The parties and their counsel appeared on December 1, 2021 pursuant to the foregoing and the judgment and warrant were vacated, and a new judgment entered for $16,140.83.
Counsel for Respondent now moves by Order to Show Cause for an Order vacating the judgment and warrant for "good cause" under RPAPL §749(3).
Counsel for Respondent references the order from the New York State Division of Housing and Community Renewal ("DHCR"), which in response to Respondent's application filed on January 21, 2021 for a rent reduction found, by Order dated April 2, 2021, that the legally regulated rent as of May 9, 2020 was $1.00 pursuant to Section 2502(6) and 2507(6) and directed that the payment be made to the owner of the subject building.
RPAPL §749(3) states that, "nothing contained herein shall deprive the court of the power to vacate such warrant for good cause shown prior to the execution thereof." While the warrant in this matter has issued, the Court of Appeals has definitively ruled that the court may "in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed." Matter of Brusco v. Braun, 84 N.Y.2d 674, 682 (1994) citing Solack Estates v. Goodman, 78 A.D.2d 512 (1st Dept. 1980). The Court has jurisdiction to exercise discretion and prevent injustice upon a showing of good cause. Id.
Counsel argued that vacating the warrant under these circumstances would not cause Petitioner any prejudice or undue hardship. She contends Respondent has made considerable efforts to pay the judgment and has secured half of what is owed and has contacted Department of Social Services for further assistance. Counsel contends that the apartment was condemned and rendered uninhabitable, and that Petitioner has failed to take action to lift the condemnation.
The issuance of a warrant "cancels the agreement under which the person removed held the premises and annuls the relation of landlord and tenant." RPAPL 749(3); see also New York City Housing Authority v. Torres, 61 A.D.2d 681 (1st Dept, 1978). However, in "appropriate circumstances" (Matter of Brusco v. Braun, 84 N.Y.2d 674 (1994)) or for "good cause" (Parkchester Apartments Co v. Scott, 271 A.D.2d 273 (1st Dept, 2000), the court may vacate a warrant and reinstate a tenancy. Good cause has been found in matters such as Solack Estates Inc v. Goodman (78 A.D.2d 512 (1st Dept 1980)) where the tenant timely mailed her rental checks while on vacation to an address she had used for many years. Unbeknownst to the tenant, the Petitioner changed managing agents and these checks were not received. The Petitioner directed counsel to commence an eviction proceeding which culminated in settlement negotiations. The court, in vacating the stipulation, held that the elderly tenant was in a state of "extreme emotional distress, lacked a basic understanding of the situation confronting her and the significance of the settlement." Id.
Similarly, good cause was found to support the vacatur of the warrant through proof that the long-term elderly tenant made appreciable payments toward the judgment, had no prior issues and arranged for automatic withdrawal of future rent from his bank account. Parkchester Apartments Co v. Scott, 271 A.D.2d 273 (1st Dept., 2000). Likewise, although the tenant in Equity LLC v. Ottley defaulted on a stipulation, the tenant was restored to possession after considering "the 20-year duration of the tenancy, landlord's failure to make the stipulated repairs, tenants' significant' payments under the stipulation and their ability to immediately pay the remaining sum due under the judgment" 14 Misc.3d 126(A) (App. Term. 2nd & 11th Jud. Dists, 2006). A disabled tenant was restored to their home of 30 years when all rents, legal fees and marshal fees were secured in Lafayette Boynton Housing Corp. v. Pickett, 135 A.D.3d 518 (1st Dept. 2016). Similarly, a tenancy of over 30 years duration was restored when the failure to pay rent was attributable in part to errors by the City of New York's Human Resources Administration in BJB Realty Corp. v. Holloway, 10 Misc.3d 133 (a) (App. Term, 2nd & 11th Jud. Dists, 2005).
Here, by contrast, Respondent has lived in the premises for approximately 9 years. The parties entered a stipulation and to date no basis for the Respondent's default in the agreement has been provided to the court. The delay in the Respondent's eviction from the premises was due to the global pandemic and the subsequent condemnation of the unit, which according to Petitioner, was a result of Respondent's actions. The Court does not find that there is requisite good cause or the appropriate circumstances to vacate the warrant and reinstate the landlord-tenant relationship and to restore Respondent to possession in this matter.
Accordingly, it is hereby, ORDERED, the above-entitled Order to Show Cause is denied; and it is further
ORDERED, that the stay of the enforcement of the warrant by the City Marshal is lifted; and it is further
ORDERED, that the warrant may be executed without any further stay.