Clarkstown Hous. Assoc. v Henderson (2007 NY Slip Op 52205(U))

Clarkstown Hous. Assoc. v Henderson

2007 NY Slip Op 52205(U) [17 Misc 3d 134(A)]

Decided on November 19, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Clarkstown Housing Associates d/b/a MAPLEWOOD GARDENS, Respondent,

against

April Henderson, Appellant.

Appeals from orders of the Justice Court of the Town of Clarkstown, Rockland County (Craig E. Johns, J.), dated September 28, 2006 and October 30, 2006. The orders, insofar as appealed from as limited by the brief, respectively denied so much of a motion by tenant as sought to vacate a warrant, and denied a motion by tenant for leave to renew so much of the prior motion as sought to vacate the warrant.

Order dated September 28, 2006, insofar as appealed from, reversed without costs and tenant's motion to vacate the warrant granted.

In this nonpayment proceeding, the parties stipulated that landlord would have a final judgment of possession with execution of the warrant stayed until June 15, 2006 for payment of the judgment amount. Thereafter, a warrant issued upon landlord's attorney's affirmation stating that there was an unpaid balance due under the terms of the stipulation. Tenant's attorney moved to, inter alia, vacate the warrant, asserting that tenant had timely paid a portion of the funds into his office's escrow account but, through his own omission, these funds had not been transferred to landlord.

Under all the circumstances presented, including tenant's showing of the availability of all the funds owed and of an excuse for tenant's counsel's omission timely to transmit a portion of the funds to landlord, tenant's inadvertent default under the stipulation should have been [*2]excused (see Moshe Realty LLC v Grant, 10 Misc 3d 127[A], 2005 NY Slip Op 51899[U] [App Term, 2d & 11th Jud Dists]; 576 Realty Corp. v Sneed, 6 Misc 3d 127[A], 2004 NY Slip Op 51686[U] [App Term, 2d & 11th Jud Dists] [excusing a tenant's default where the tenant had the funds in her possession by the payment date and inadvertently failed to transmit them to landlord]; 146 Gunhill Road Corp., 4 Misc 3d 128[A], 2004 NY Slip Op 50676[U] [App Term, 1st Dept]). Accordingly, the order denying so much of tenant's motion as sought to vacate the warrant is reversed and that portion of tenant's motion that sought to vacate the warrant is granted.

In view of the foregoing, the appeal from the order dated October 30, 2006 is rendered academic.