Landlord & Tenant Law

In affirming, the Appellate Division first held that the one-year statute of limitations applicable to wrongful eviction actions did not bar tenant's conversion claim. The court concluded that the conversion claim was not merely a damage claim within a wrongful eviction claim. The court then concluded that the lease provision limiting liability for loss of property did not entitle landlord to summary judgment. First, the court noted that it was not clear whether the lease was in force at the time of the conversion or whether the 2012 warrant of eviction terminated the lease as a matter of law. The court then noted that even if the lease was still in force, it would not have barred the conversion claim with respect to property stored in the adjacent unit. As a result, landlord was note entitled to summary judgment. At the same time, issues of fact remained with respect to damages, so tenant was not entitled to summary judgment.

Comment

Issuance of a warrant of eviction does not irrevocably terminate a landlord-tenant relationship. Until 2019, RPAPL §749(3) explicitly stated that the issuance of a warrant of eviction terminated the landlord-tenant relationship. The statute also provided, however, that a court may vacate the warrant for good cause prior to execution. After the 2019 amendment, section 749(3) no longer states that the relationship is annulled, but it continues to give a court authority to stay or vacate the warrant for good cause, and adds a power to restore a tenant to possession subsequent to execution.

Both before and after the amendment, a tenant who acts in good faith is entitled to a vacation of the warrant in a nonpayment proceeding when the full rent due is paid prior to the warrant's execution. In Lindsay Park Houses v. Greer, 128 Misc.2d 775, the court held that tenant was entitled to vacation of the warrant when tenant's earlier failure to make rent payments was due to the Department of Social Services' mistake in denying him assistance, and where the Department made the money available before execution of the warrant. The court indicated that a proceeding remains pending until the warrant's execution, enabling the court to take or terminate any steps it deems necessary in the interest of justice.

If, however, landlord can establish that the tenant withheld the rent due in bad faith, subsequent payment of rent does not entitle tenant to vacate the warrant of eviction. Thus, in J. A. R. Management Corp. v. Foster, 109 Misc.2d 693, the court found no good cause for vacating a warrant of eviction prior to its execution, even though tenant tendered the full amount due after a 72-hour notice of eviction was placed on her door, because had admitted to owing three months' rent and had no excuse for not making the payment. The court indicated that even if the warrant had not been executed, it would not have been vacated.

After the issuance of a warrant of eviction, and before it is executed, the landlord retains some obligations to the tenant. In particular, landlord is obligated to maintain the premises in accordance with the housing code. Shapiro v. Townan Realty Co., 162 Misc.2d 630, held that a rent-stabilized tenant was entitled to insist that the landlord maintain the premises in a safe and habitable condition, even after the court had issued a warrant of eviction. The court noted that execution of the warrant had been stayed, allowing the tenant to remain in the apartment as long as he paid his rent. Because the tenant was permitted to remain in possession, he could not be forced to live in unsafe conditions.