Appeal by tenant from an order of the Civil Court, Kings County (G. Marton, J.), dated February 20, 2004, denying her motion to vacate a warrant for good cause shown. The appeal brings up for review so much of an order of the same court, dated June 3, 2004, as, upon reargument, adhered to the original determination (see CPLR 5517 [b]).

Appeal from order dated February 20, 2004 unanimously dismissed as that order was superseded by so much of the order dated June 3, 2004 as was made upon reargument. [*2]

Order dated June 3, 2004 unanimously modified by providing that, upon reargument, tenant's motion to vacate the warrant for good cause shown is granted; as so modified, affirmed without costs.

Since tenant did not default in or otherwise delay this proceeding but rather proceeded expeditiously to get the Department of Social Services to assist her in satisfying the judgment and inasmuch as tenant was prepared to pay all of the arrears, her motion to vacate the warrant for good cause shown should have been granted (RPAPL 749 [3]; see Rhinestone Ventures Assoc. v Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d & 11th Jud Dists]). If, as landlord alleges, tenant has chronically defaulted in the payment of rent, landlord's remedy is to prove this claim in a holdover proceeding.
Decision Date: April 29, 2005