Panels Clash on Pre- and Post-Eviction Remedies

Lafayette Boynton concerned a disabled and infirm rent-stabilized tenant who had been in occupancy for 46 years. The tenant was evicted, but Civil Court (Vargas, J.) granted his motion to be restored on the condition that the tenant pay, within two weeks, all remaining rent arrears, eviction costs, and landlord's attorneys' fees. Appellate Term, 44 Misc3d 140(A), affirmed, holding that “the particular facts and circumstances of record” did not “warrant the forfeiture of this tenancy,” and that Civil Court had not abused its discretion.

Citing Brusco v Braun, 84 NY2d 674 (1994), the Appellate Division majority held that a court, “'in appropriate circumstances,'” can “vacate a warrant of eviction and restore the tenant to possession even after the warrant has been executed.” The majority observed that the tenant “made appreciable payments toward his rent arrears and 'engaged in good-faith efforts to secure emergency rental assistance to cover the arrears.'”

Justice Saxe concurred, writing that existing case law justified the majority's affirmance. But he called such authority into question, and expressed his concern that the law often “forces landlords to serve as de facto no-interest lenders to low-income tenants.”

Justice Saxe noted that prior to eviction, RPAPL 749(3) authorizes the vacatur of a warrant of eviction for “good cause shown.” Post-eviction, the court can restore the tenant to possession under “appropriate circumstances,” although, ironically, that remedy was established in Brusco, a pre-eviction case. Justice Saxe further observed that in some post-eviction cases, courts had erroneously employed the pre-eviction standards of “good cause shown” and abuse of discretion.

The concurring Justice urged courts to “reconsider the standard of proof necessary to vacate an already-executed warrant of eviction,” stating:

When the posture of the litigation is that a warrant of eviction was issued based on conceded rent arrears, but was stayed to give the tenant time to obtain the overdue funds from any available sources, the 'good cause' standard of RPAPL 749(3) makes perfect sense.

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But since a completed eviction ordinarily terminates the tenant's interest in the property and entitles the landlord to treat the previously rented premises as its own, a court should not undo that eviction unless the tenant makes a showing of something more than the type of 'good cause' that justifies vacating an unexecuted warrant.

Justice Saxe concluded that where the warrant has already executed, the tenant should have to establish that “incorrect assumptions or findings were made in issuing the warrant of eviction that undermines the basis for its issuance in the first place.” Acknowledging that there were public policy considerations to ensure that long-term elderly or infirm tenants do not lose their rent-regulated apartments, Justice Saxe noted that under the present case law, courts “are relying on the private property owners who happen to rent apartments to such tenants, requiring them to cover the shortfall for months, or even years, rather than, as a society, making sure that elderly and disabled low-income tenants have access to the necessary funds in a timely manner so they can stay current on their rent” (italics in original).

191 St. Assoc.

191 St. Assoc. concerns the more common scenario of a long-term rent-regulated tenant who has fallen behind in rent and hopes to avoid eviction. The tenant in 191 St. Assoc . failed to appear, and a warrant of eviction was issued. The tenant moved to vacate her default, but failed to appear on that date as well. Over the next 15 months, the tenant sought and obtained court-ordered stays, and signed a “time of the essence” stipulation, which she breached. Notwithstanding, Civil Court granted the tenant a tenth stay of execution.

Appellate Term reversed, holding that Civil Court had abused its discretion, and that public policy encourages the enforcement of stipulations. The majority stated that the landlord had previously commenced 28 nonpayment proceedings against this tenant, and, as to the tenant's status as disabled and infirm, such status “is one of the particular facts and circumstances to be considered by the court,” and “does not constitute an automatic exemption to be robotically applied with a blind indifference to other considerations.”

Justice Ling-Cohan dissented, holding that in this type of case, the court should conduct “a fact-sensitive inquiry” including “the extent of tenant's delay in tendering payments, the length and nature of the tenancy, the tenant's advanced age or infirmities, the amount of the default, the particular tenant's history, tenant's ability to pay future rent, tenant's payment of arrears during the course of the proceeding, and a balance of the equities.”

Analysis

Lafayette Boynton and 191 St. Assoc. evidence what happens when a court attempts to enforce contracts, while at the same time seeking to implement a social policy designed and to keep tenants in occupancy from being evicted.

A lease is a contract, like any other. See Farrell Lines, Inc. v. City of New York, 30 NY2d 76 (1972). Thus, when a tenant has failed to timely pay rent, he or she is in breach of the contract, and contractual remedies should be enforced. A stipulation is also a contract. See Banos v. Rhea, 25 NY3d 266 (2015). As such, where a tenant executes a stipulation to pay rent by a date certain, that stipulation should also be enforced, especially where the stipulation is “time of the essence” and provides that no default shall be deemed de minimis.

The problem in landlord-tenant cases is that strict enforcement of a contract can lead to eviction. Given New York City's housing situation, and the general lack of affordable housing in the City, evictions can lead to homelessness. As long as courts seek to avoid evictions, landlords can expect that contracts and stipulations will not be strictly enforced, and that, as Justice Saxe wrote, landlords who happen to rent apartments to the elderly or infirm will bear the brunt of this social policy.

Jeffrey Turkel, a member of this Newsletter's Board of Editors, is a partner in the Manhattan Real Estate law firm of Rosenberg & Estis, P.C.