Opinion
2013-07-19
ARCHSTONE CAMARGUE I LLC, Archstone Camargue II LLC, Petitioner–Landlord–Appellant, v. Margaret O'Reilly KORTE, Respondent–Tenant–Appellant.
Belkin Burden Wenig & Goldman, LLP, New York City (Alexa Englander of counsel), for appellants. Jeanette Zelhof, MFY Legal Services, Inc., New York City (Jason Blumberg of counsel), for respondent.
Belkin Burden Wenig & Goldman, LLP, New York City (Alexa Englander of counsel), for appellants. Jeanette Zelhof, MFY Legal Services, Inc., New York City (Jason Blumberg of counsel), for respondent.
PRESENT: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Timmie Erin Elsner, J.), dated December 28, 2011, affirmed, without costs.
Under the present circumstances, and in view of the elderly rent stabilized tenant's tender of the full amount of the final judgment issued in this nonpayment summary proceeding, we find no cause to disturb the court's discretionary determination to vacate the warrant of eviction so as to preserve the long-term (over 30–year) tenancy, while at the same time safeguarding the landlord's right to seek legal fees. Based on an examination of the history of the proceeding, including the tenant's steady and ultimately successful efforts to secure emergency rent relief from a city agency, we are satisfied that sufficient “good cause” has been shown to warrant the requested relief (RPAPL 749[3]; see Harvey 1390 LLC v. Bodenheim, 96 A.D.3d 664, 948 N.Y.S.2d 32 [2012] ). Here, similar to Bodenheim, 96 A.D.3d at 665, 948 N.Y.S.2d 32, “the tenant did not sit idly by or fail to appear, resulting in entry of judgment by default. Instead, [s]he made partial payments, engaged in good faith efforts to secure emergency rental assistance to cover the arrears and, at the time Civil Court stayed execution of the warrant” had obtained and tendered the full amount of the arrears. MARTIN SHULMAN, J. (concurring).
I join my colleagues in voting to affirm the order under review, so as to preserve the rent stabilized tenancy here involved. Weighing all of the relevant factors ( see Harvey 1390 LLC v. Bodenheim, 96 A.D.3d 664, 666, 948 N.Y.S.2d 32 [2012];Parkchester Apts. Co. v. Heim, 158 Misc.2d 982, 983–984, 607 N.Y.S.2d 212 [1993] ), I am not prepared to say that the motion court abused its discretion as a matter of law in determining that “good cause” (RPAPL 749[3] ) sufficient to vacate the warrant of eviction was shown on this record ( see Bodenheim, 96 A.D.3d 664, 948 N.Y.S.2d 32;cf. New York City Hous. Auth. v. Torres, 61 A.D.2d 681, 403 N.Y.S.2d 527 [1978] ). Granted, the good cause issue may be viewed as a close one, given the competing circumstances disclosed in the record-including on the one hand the elderly, infirm tenant's eventual tender of the full amount (roughly $8,400) of the rent arrears due landlord and the absence from the parties' settlement stipulation of any time of the essence or similar “hell or highwater” payment clause, and on the other hand the motion court's own stated skepticism over the tenant's ability to meet her rental obligations going forward. In the end, however, I agree that due deference to the motion court's discretionary determination in favor of the tenant is warranted.
While fully recognizing the usefulness, in appropriate cases such as this, of the flexibility provided by the Bodenheim holding, I encourage the judges at nisi prius to remain mindful that the type of “fact sensitive” (at 666) inquiry prescribed therein should not, in its application, serve to erode certainty and predictability in this high-volume area of residential landlord-tenant law or allow settlements, absent the requisite good cause showing, to become “gateways to litigation” ( Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383, 604 N.Y.S.2d 900, 624 N.E.2d 995 [1993] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT