Appeal by landlord from an order of the Civil Court, Queens County (P. Jackman-Brown, J.), entered on May 23, 2003, which in effect vacated a warrant of eviction, dismissed the petition and denied, without prejudice to landlord bringing a plenary action, its application for attorney's fees, late charges and maintenance.

Order unanimously affirmed without costs.

Contrary to landlord's contention, the warrant was properly vacated for good cause shown (RPAPL 749 [3]) based upon landlord's acceptance of rent after issuance of the warrant of eviction, tenant's reasonable dispute over the amount actually owed and the confusion concerning the failure of tenant's prior attorney to deposit the judgment amount in the court below. [*2]

Contrary to landlord's argument, the court below did not fail to abide by the order of this court since the temporary stay conditioned upon depositing the sum of $2,188.16 in the court below terminated when tenant failed to deposit said sum in accordance with our order.

Finally, we find that the court below providently exercised its discretion in denying landlord's application, without prejudice to landlord bringing a plenary action, for attorney's fees, late charges and maintenance which allegedly accrued after the parties entered into the stipulation settling the proceeding.
Decision Date: April 26, 2005