Tenant appeals from an order of the Civil Court, New York County (Maria Milin, J.), entered on or about April 5, 2005, which, inter alia, denied his motion to stay the execution of a warrant of eviction in a holdover summary proceeding. Landlord cross appeals from that portion of the aforesaid order which denied its application for attorneys' fees.

PER CURIAM

Order (Maria Milin, J.) entered on or about April 5, 2005, reversed, without costs, and tenant's motion is granted to the extent of staying execution of the warrant.

In settlement of a chronic nonpayment holdover proceeding, tenant consented to the entry of a final judgment, with execution of the warrant stayed provided that he paid, by certified funds, bank check or money order, $2,933.70 on or before October 28, 2004, and thereafter, paid his rent on or before the first of every month during a probationary period ending October 2006. Tenant also agreed to pay landlord's counsel fees in four monthly payments. Having made the lump sum payment, tenant's November 2004 rent payment was one day late and deficient by $1.56. He tendered a proper replacement check the next day. When tenant's December 2004 payment on the attorney's fees was $30 short, landlord deemed tenant in default and refused to accept the January 2005 rent.

The de minimis deviation from the stipulation's payment terms reflected in the record should not result in a forfeiture of the rent stabilized tenancy in the circumstances of this case and in the absence of any demonstrated prejudice to landlord (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]). So far as appears, tenant has complied with his payment obligations during the period of the stay granted by this court.

This constitutes the decision and order of the court. [*2]
I concurI concurI concur
Decision Date: December 14, 2005