Appeal from an order of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered March 7, 2006. The order granted a motion by tenant Benni's I, LLC to vacate a final judgment and warrant, and dismissed the petition.

Order modified by providing that the motion by tenant Benni's I, LLC is granted only to the extent of vacating the warrant; as so modified, affirmed without costs.

In this commercial nonpayment proceeding, the parties entered into a stipulation in open court on July 6, 2005, agreeing that the amount of arrears in rent and additional rent from February 14, 2003 through July 6, 2005 was $126,224.59 and that tenant Benni's I, LLC would timely pay rent and additional rent going forward. Tenant did not waive or withdraw its defense that landlord failed to properly explain the calculations for tax increases. On December 19, 2005, the court, finding that tenant had failed to comply with the stipulation, entered a final judgment awarding landlord possession, a warrant of eviction, and the principal sum of $183,719.77. Thereafter, tenant applied by order to show cause to vacate the final judgment and warrant, and to dismiss the petition, arguing, inter alia, that the amount of the judgment incorrectly included the disputed taxes, and stating that it had "base monies available to pay" landlord in a few days. Upon signing the order to show cause, the court directed tenant to [*2]deposit $60,000 into court. Landlord opposed tenant's motion on the ground that tenant failed to demonstrate good cause to vacate the warrant. After a hearing, the court denied tenant's motion, ordered the release of the $60,000 to landlord, and stayed execution of the warrant for 14 days. After paying landlord an additional $123,969.77 within the 14 days, tenant again moved for relief from the final judgment and warrant, and to dismiss the petition. Landlord opposed the second motion, claiming, inter alia, that by accepting tenant's payment, it did not intend to revive the tenancy. The court granted tenant's motion, vacated the final judgment and warrant, and dismissed the petition, stating that when it ordered the release to landlord of the $60,000 from escrow, it intended that "any subsequent payment of the balance within [the] 14-day period would render the judgment a nullity." On appeal, landlord repeats its argument that tenant did not demonstrate good cause to vacate the warrant. Tenant argues that the court has the discretion to determine what constitutes good cause, notwithstanding a landlord's intention not to reinstate the tenancy.

In our view, the court could properly determine that good cause existed to vacate the warrant (RPAPL 749 [3]). "The law abhors a forfeiture of a lease..." (Lake Anne Realty Corp. v Sibley, 154 AD2d 349, 351 [1989]; see J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 399 [1977]). Here, the court found that tenant had paid the judgment in full. In addition, tenant has allegedly paid more than $2.5 million in rent over the four years of its tenancy, employs more than thirty people, who would be harmed by execution of the warrant, and stands to lose a long-term lease and its investment in the premises. Although full payment of a judgment is not grounds to vacate the judgment, in these circumstances it was not an abuse of discretion for the court to vacate the nonpayment warrant in order to prevent a forfeiture of the leasehold (see 41st Ave. Realty Assoc. v Choices Women's Med. Ctr., 188 Misc 2d 274 [App Term, 2d & 11th Jud Dists 2001]). Since no basis was established for vacatur of the
final judgment and dismissal of the petition, we modify the order accordingly (see Kew Gardens NY, LLC v Saltos, 10 Misc 3d 145[A], 2006 NY Slip Op 50135[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: October 13, 2006