Opinion
2004-1585 K C.
Decided November 15, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Maria Ressos, J.), entered November 10, 2004. The order denied tenant's motion to, inter alia, stay execution of a warrant of eviction.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
In this holdover summary proceeding based upon nuisance and breach of a substantial obligation of the lease, a final judgment was entered on November 12, 2002, awarding landlord possession and, pursuant to RPAPL 753 (4), staying execution of the warrant for tenant to, among other things, remove a washing machine. The court's decision further directed tenant to contact landlord when the machine was removed in order to arrange an inspection. Following an unsuccessful appeal to this court ( Starrett City v Granthan, 2 Misc 3d 132 [A], 2004 NY Slip Op 50121[U]), tenant moved, in November 2004, to stay execution of the warrant, arguing that she had complied with the court's order by disconnecting the washing machine.
It was undisputed upon tenant's post-judgment application that tenant failed to remove her washing machine from her apartment as required by the court's decision and that she failed to contact landlord to arrange for an inspection. Tenant's argument that she thought that disconnection was sufficient is not persuasive. In addition, the court's direction that tenant notify landlord of the removal was an integral part of the cure requirement since a subsequent inspection was essential to establish whether tenant had timely complied with the court's order. As the tenancy had been terminated prior to the commencement of the holdover proceeding after tenant failed to comply with the ten-day notice to cure ( see RPAPL 711; see also Landmark Properties v Olivo, 10 Misc 3d 1, 3 [App Term, 9th 10th Jud Dists 2005]), the sole means of reviving her tenancy in the subject premises was for tenant to comply within the post-judgment cure period granted in the judgment ( see RPAPL 753; see also Post v 120 East End Ave. Corp., 62 NY2d 19, 27; 490 Owners Corp. v Israel, 189 Misc 2d 34 [App Term, 2d 11th Jud Dists 2001]). Since tenant failed to comply with the order within the time granted, her tenancy was not revived, and the court below properly held that it had no authority to grant further stays in the matter ( see Post v 120 East End Ave. Corp., 62 NY2d 19, supra; Belmont Owners Corp. v Murphy, 153 Misc 2d 444 [App Term, 2d 11th Jud Dists 1992]).
We note that tenant's contentions regarding the merits of the determination following trial were resolved by this court on the prior appeal and are not properly before the court on this appeal.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.