Opinion
No. 51675/2010.
2010-08-18
Cesar TORO, Petitioner(s), v. GLORIA AGROPIDS, Respondent(s).
ORLANDO MARRAZZO, J.
Respondent moves in this no defense holdover proceeding to be restored to possession. As is set forth below, respondent's motion is denied in its entirety.
On June 14, 2010, the parties herein entered into a “so ordered” stipulation resolving this holdover proceeding. Pursuant to the terms of the stipulation, the respondent acknowledged owing rental arrears. According to the stipulation, a warrant was to issue forthwith with execution stayed on the condition the respondent pays use and occupancy for July 2010 and August 2010 on or before the 5th day of each respective month, and if timely paid, execution of the warrant was to be stayed through August 14, 2010 for the respondent to vacate together with her 5 children from the subject apartment.
The respondent defaulted on the terms of the stipulation, by failing to pay as required. Respondent then sought her first order to show cause. On July 23, 2010, the court (Hon. Marina Cora Mundy) issued an order staying the warrant through August 31, 2010, on the condition respondent pays $105 plus her share of August 2010, rent to petitioner's attorney by August 2, 2010. Respondent defaulted and was evicted, and now by her second order to show cause, respondent moves to be restored to possession.
In New York State, it is a well settled principle of landlord-tenant law that the issuance of a warrant of eviction annuls the landlord-tenant relationship and terminates a summary proceeding. RPAPL section 749; 300 West Realty Co. v. Wood, 69 Misc.2d 580, 330 N.Y.S.2d 524 (Civ.N.Y.1971); aff'd, 69 Misc.2d 582, 330 N.Y.S.2d 527 (App.T. 1st Dept.1972). Thereafter, the court is ousted of jurisdiction. Jurisdiction can only be revived in very limited circumstances-i.e., where the judgment was obtained by illegality or fraud or the court lacks subject matter or personal jurisdiction-by vacating the judgment and warrant. CPLR section 5015; 300 West Realty Co. v. Wood, supra; Matter of Albany v. White, 46 Misc.2d 915, 261 N.Y.S.2d 361 (Civ.N.Y.1965) quoted by Harris v. Yuan, 157 Misc.2d 359 360–361, 597 N.Y.S.2d 262, 263 (Civ. N.Y.1993). See also, Residential Landlord—Tenant Law in New York Chapter 15. Judgments, Warrants, and Stays of Eviction, II. Warrants of Evictions and Stays by Andrew Scherer, Esq., Hon. Fern Fisher).
In the instant proceeding it is clear to the court that respondent fails to demonstrate good cause to be restored to possession. Here, the warrant of eviction not only issued but was executed, clearly any interest that respondent may have had was extinguished and annulled through the operation of law. Therefore, this court is divested of the jurisdiction to restore respondent to possession. Respondent was residing as an unregulated tenant in a two family house that was not subject to any form of governmental rent regulations, and respondent cannot demonstrate how her eviction would effect the forfeiture of a protected tenancy.
Moreover, the respondent failed to demonstrate that the stipulation entered herein was obtained by illegality or fraud. Therefore, the court lacks subject matter or personal jurisdiction-by vacating the judgment and warrant.
The court notes, that at the hearing herein the respondent failed to offer proof that she attempted to pay the petitioner's attorney as required by Judge Mundy's July 23, 2010, order. The respondent testified that her aunt and friend saw her attempting to call and or deliver payment, however, they were not in court to testify to that effect. Prior to today's hearing Judge Mundy granted respondent an adjournment to consult with Legal Aid. It is interesting, that at the hearing, the respondent did not show a dated money order that would corroborate her claim that she had the monies due ready and able to satisfy Judge Mundy's July 23, 2010, order. What interests the court the most, that from July 23, 2010, until respondent served petitioner's attorney with her order to show cause, she made no attempt to pay petitioner's attorney. Finally, respondent could have mailed payments to petitioner's attorney, and failed to explain why she did not make said attempt.
Accordingly, respondent's motion is denied in its entirety. All stays are vacated. However, respondent may have limited access on August 19, 2010 and August 20, 2010 between 10AM to 3PM to remove any remaining property. Any remaining property left behind after 3PM on August 20, 2010, shall be deemed abandoned.
This constitutes the court's decision and order.