Opinion
No. 2013–1531 K C
11-06-2014
MANSFIELD OWNERS, INC., Appellant, v. Virginia ROBINSON, Respondent, Timothy Risbrook, Tenant, and Richard Butrico, “John Doe” and “Jane Doe,” Undertenants.
Opinion
ORDERED that the order is modified by providing that the branch of tenant's motion seeking to vacate the final judgment is denied; as so modified, the order is affirmed, without costs.
In this illegal-sublet holdover proceeding, after landlord was granted summary judgment, a final judgment was entered awarding landlord possession. Issuance of the warrant was stayed through October 31, 2012 for tenant to cure the breach. Tenant thereafter moved to vacate the final judgment and permanently stay the issuance and execution of the warrant on the ground that she had cured the sublet. In support of the motion, tenant showed that the illegal subtenant had agreed to move out by June 30, 2012 but had reneged on the agreement; that she had retained counsel and served a 30–day notice on the illegal subtenant in July 2012, terminating the subtenancy as of August 31, 2012; that she had commenced a holdover proceeding returnable September 19, 2012, which had been adjourned at the subtenant's request to October 12, 2012; and that she had obtained a consent final judgment against the subtenant on October 12, 2012, with execution of the warrant stayed until November 12, 2012 for the subtenant to vacate.
In opposition to tenant's motion, landlord showed, among other things, that the subtenant had not vacated as of November 20, 2012. In fact, the subtenant was not ultimately evicted until December 11, 2012. Landlord argued that the cure was not timely and that the court-ordered RPAPL 753(4) cure period could not be extended, citing this court's decision in Belmont Owners v. Murphy (153 Misc.2d 444 [1992] ; see also e.g. 259 W. 12th, LLC v. Grossberg, 89 AD3d 585, 586 [2011] [RPAPL 753(4) is designed to cover breaches temporary in nature correctable within the 10–day period] ). The Civil Court granted tenant's motion, vacated the final judgment, and permanently stayed the issuance and execution of the warrant.
In the circumstances presented, the Civil Court properly found that tenant had timely cured by terminating the sublet, commencing a holdover proceeding and obtaining a final judgment before the expiration of the court-ordered cure period, and that the delay in the actual eviction of the subtenant was not undue and could be deemed de minimis (cf. Caniglia v. Elnokrashy, 2003 N.Y. Slip Op 50824[U] [App Term, 2d & 11th Jud Dists 2003] ). Consequently, the issuance of the warrant was properly stayed, thereby protecting tenant “against any other losses incident to the forfeiture, including in this case, the loss of [tenant's] stock in the cooperative which could result from the termination of [her] lease” (Post v. 120 E. End Ave. Corp, 62 N.Y.2d 19, 27 [1984] ). However, no basis was shown to vacate the final judgment (see Kew Gardens NY, LLC v. Saltos, 10 Misc.3d 145[A], 2006 N.Y. Slip Op 50135[U] [App Term, 2d & 11th Jud Dists 2006] ). We modify the court's order accordingly.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.?