Landlord & Tenant

(2-1 decision; per curiam opinion; dissenting opinion by Ling-Cohan, J.)

In landlord's nonpayment proceeding, landlord appealed from Civil Court's grant of tenant's motion to stay execution of a warrant of eviction. The Appellate Division reversed, holding that Civil Court had abused its discretion.

Landlord brought the nonpayment proceeding against rent-stabilized tenant in August 2012, seeking eight months of rent arrears. A default judgment was entered against tenant in September 2012, and a warrant of eviction was issued in November 2012. Tenant's motion to vacate the default was denied in December 2012 due to her failure to appear. Over the ensuing 15 months, tenant obtained a number of court-ordered stays of the warrant of eviction. Ultimately, in January 2014, the parties, both advised by counsel, entered into a stipulation staying execution of the warrant of eviction upon tenant's compliance with a strict payment timetable. The stipulation provided that all payments were deemed time of the essence, and no default would be deemed de minimus . Tenant failed to make a scheduled payment of $2060.30 on Feb. 20, 2014, instead making a payment of $688. Civil Court nevertheless granted tenant a further stay of execution of the warrant. Landlord appealed.

In reversing, the Appellate Term majority held that Civil Court should not have granted the stay, but should have strictly enforced the parties' stipulation. The court emphasized the tenant's lengthy history of rent defaults, including 28 prior nonpayment proceedings commenced against her. In light of that history, and the fact that tenant was represented by counsel when she signed the stipulation, Civil Court abused its discretion by staying execution of the warrant.

Justice Ling-Cohan, dissenting, focused on the 34-year duration of the tenancy and the modest amount of rent due, and emphasized that the trial court has broad discretion to determine whether good cause exists even when the issues is vacating an already-executed warrant of eviction. She emphasized that the First Department has held that courts should hold a fact-sensitive inquiry, and should balance the equities.

COMMENT

When landlord obtains a warrant of eviction pursuant to a stipulation of settlement, Civil Court does not abuse its discretion to stay execution of the warrant when a tenant has demonstrated good cause by making significant efforts to cure arrears. In Harvey 1390 LLC v. Bodenheim, 96 A.D.3d 664, the First Department reversed the Appellate Term and reinstated the trial court's finding that a 15-day stay of the execution of a warrant of eviction was appropriate, despite tenant default on payments under a stipulation, when tenant demonstrated that he approached charities and agencies to obtain assistance, tendered almost all of the payment due, and showed that he would soon receive enough charitable assistance to satisfy the arrears. When tenant's failure to comply with a settlement stipulation is caused by a third party's delays, Civil Court does not abuse its discretion by staying execution. In 2246 Holding Corp. v. Nolasco, 52 AD3d 377, the First Department held that the civil court did not abuse its discretion to stay the eviction of a 30-year tenant when the tenant's defaults were largely the result of the Human Resources Administration delay in issuing benefits.

Civil Court abuses its discretion if it stays execution merely because tenant asserts difficulty in obtaining funds, a lengthy occupancy, or because tenant has medical issues. In Chelsea 19 Associates v. James, 67 A.D.3d 601, the First Department affirmed the Appellate Term's reversal of Civil Court's stay of execution, holding that the stay was inappropriate when the parties had entered into a stipulation of settlement to cure extensive, unexplained rent defaults, and the tenant defaulted. The court noted that claiming difficulty in obtaining funds was not a meritorious defense. Similarly, in 2460 Davidson Realty, LLP v. Lopez, 43 Misc. 3d 130(A), the First Department Appellate Term reversed the civil court's decision to stay execution of a warrant of eviction when the parties entered into a rent delinquency stipulation. The court found a stay inappropriate given tenant ' s extended history of rent defaults, which continued with regularity for a 20-month period during the probationary term agreed upon by the parties. The court noted that neither the length of the tenancy nor tenant ' s belated and bare-bones assertion that she has an unspecified psychiatric problem constituted “good cause.”

The First Department has held that Civil Court has authority to vacate the warrant of eviction even after the warrant has been executed, so long as tenant makes the same good cause showing necessary to vacate a warrant before execution. In Lafayette Boynton Hsg. Corp. v. Pickett, 135 A.D.3d 518, the First Department held that the trial court did not abuse its discretion in vacating an executed warrant of eviction for a long-term, disabled tenant who “did not sit idly by” but rather made appreciable payments towards his rental arrears that were in part caused by third parties.

The court held that the trial court providently exercised its discretion in finding good cause when the record reflected tenant's attempts to secure emergency rental assistance to cover the arrears. The record also showed that the tenant had ultimately paid the rental arrears for the unit and the landlord's costs for the underlying proceeding. The concurring opinion called for the court to reconsider the standard of proof necessary to vacate an already-executed warrant of eviction ' noting that importing the same good cause standard for already executed warrants may be inconsistent with the statutory language.

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