| Moshe Realty LLC v Grant |
| 2005 NY Slip Op 51899(U) [10 Misc 3d 127(A)] |
| Decided on November 21, 2005 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 20, 2004. The order granted tenant's motion to restore her to possession in a nonpayment summary proceeding.
Order unanimously affirmed without costs.
Following the entry of a default final judgment in this nonpayment summary proceeding and execution of the eviction warrant, landlord and tenant stipulated to restore tenant to possession upon payment of the rent arrears and attorney's fees by a date certain. One day after said date, the Department of Social Services (DSS) issued a check for the stipulated sum, omitting only the attorney's fees portion. One week later, the court granted tenant's motion for an order restoring her to possession and compelling landlord to accept DSS's new payment for the entire sum due pursuant to the stipulation. Landlord appeals, and we affirm.
The week's delay in proffering the entire amount, clearly due to agency error, caused landlord no obvious prejudice and constituted a de minimis violation of the stipulation's terms without fault attributable to tenant (see Pennsylvania Leasing Co. v Urena, App Term, 2d & 11th Jud Dists, Nov. 1, 2004, No. 2004-1447 Q C ["(M)inor delays in compliance with (a settlement stipulation) occasioned by the Department of Social Services' error, where no fault can be attributed to tenant, do not warrant forfeiture of (a) tenancy"]; see generally Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]; 576 Realty Corp. v Sneed, 6 Misc 3d 127[A], 2004 NY Slip Op 51686[U] [App Term, 2d & 11th Jud Dists]; 1466 Gunhill Rd. Corp. v Andrew, 4 Misc 3d 128[A], 2004 NY Slip Op 50626[U] [App Term, 1st Dept]; Fisher v Nugent, [*2]NYLJ, Sept. 20, 1995 [App Term, 2d & 11th Jud Dists]; Raridge Properties v Haner, NYLJ, Aug. 16, 1991 [App Term, 2d & 11th Jud Dists]; cf. Davern Realty Corp. v Vaughn, 161 Misc 2d 550, 551 [App Term, 2d & 11th Jud Dists 1994]). This is not a case where landlord
evidenced no intent to reinstate the landlord-tenant relationship, and the circumstances, including tenant's obvious and near-successful efforts timely to secure the payment due, her 10-years' occupancy (landlord alleged no prior delinquency) and the policy disfavoring forfeitures of tenancies, collectively warranted tenant's restoration to possession.
Decision Date: November 21, 2005