Petitioner commenced this non-payment proceeding to recover $3,479.83 for the outstanding amounts:

1) $1340.00 - June 2006 rent,

2) $379.83 - utility bills,

3) $1600 - July 2006 rent,

4) $160.00 - late fees.

The parties entered into a stipulation of settlement on July 28, 2006. The stipulation provided that respondents owed petitioner $1,879.83 after a payment of $1,600.00. The stipulation provided that the arrears of $1,879,83 were to be paid as follows:

Deposited into account No. 6107015084 at Bank of New York (Landlord's Account), in installments as follows: $600.00 by July 31, 2006; $600.00 by August 7, 2006; $679.83 by August 14, 2006. [*2]

The stipulation further provided that Petitioners could obtain a judgment of possession, warrant, and money judgment upon a default. However, the stipulation stated "Tenants' Lease and tenancy shall be restored upon the tenants' compliance."

The parties also agreed that the separate August rent could be paid by August 31, 2006, instead of August 1, 2006.

Petitioners submitted an affidavit of non-compliance dated September 12, 2006, which states:

I, Debra Nathanson, am the landlord at 74 Atlantic Avenue, Freeport, New York, 11520. On August 28, 2006, I had a Petition to Recover Possession of Real Property for Non-Payment in front of the court. I was sent to mediation along with my tenant. The mediator was Wanda L. Selinger. A Stipulation of Settlement Non-Payment was agreed to and signed. My tenants did not comply with the terms of this agreement. My tenants did not pay me timely and completely the monies owed to me.

As of today, September 11, 2006, Michael & Mildred Mitchell have defaulted on the Stipulation Agreement and still owe me $1,539.58 of the $1,879.83 that they were to pay me by August 14, 2006.

Please enter a judgment for $1,530.58 against Michael and Mildred Mitchell as per the Stipulation Agreement.

Judge Miller issued a judgment of possession and warrant based upon the affidavit of non-compliance. The respondents moved by order to show cause to stay the eviction and to set aside the judgment and warrant of eviction. Respondents stated in their moving papers that payments where made as follows:

7-31-06: $500.008-1-06: $100.00Total $600.00

8-7-06: $340.008-10-06: $260.00Total $600.00

8-14-06: $120.008-18-06 $440.008-19-06: $40.00Total $600.00

The balance due $79.83 was applied to the following months rent as per Mrs. Nathanson. Payments are as follows:

8-26-06: $600.009-1-06: $200.009-2-06: $400.00

9-11-06: $480.00Total = $1,680.00 Each for August

9-15-06: $200.0010-16-06: $1,480.00Total $1680.00 Rent for September

All includes late fees. This action was called simply because Mrs. Nathanson refuses to fix a collapsed ceiling and various leaks and squirrels inhabiting the house. This was reported to the building department of the Village of Freeport.

Petitioner submitted an affidavit in opposition dated November 12, 2006, admitting that respondents paid $2,400.00 by August 31, 2006. The payments totaling $2,400.00 exceeded the total amount owed pursuant to the stipulation of settlement. However, petitioner claims that August rent was not timely paid by respondents and therefore they should be evicted. The Courts have held that the failure to pay future rent in a non-payment proceeding cannot form the basis for an eviction of a tenant. In Ruppert House Co. v. Altmann, 127 Misc 2d 115, 485 N.Y.S. 2d 472 (Civil Ct. 1985) the court held that failure to pay future rent cannot be the basis to evict a tenant because:

. . . hold that a stipulation which, in essence, entitles the landlord to evict a residential tenant for non-payment of amounts of rent exceeding the amount of rent sought in the petition (or, in the event the amount sought in the petition does not reflect current rent, then the amount the petition could be amended to include at the time of the proposed stipulation), violates public policy. The reason is apparent-this mode of coercing payments of rents not yet due would impede the tenant's ability to assert against the landlord future defenses such as a breach of the warranty of habitability which, by statute, has been declared to be the public policy of this State (R.P.L. Sec. 235-b).

See also, Rasch's Landlord & Tenant, Hon. Robert F. Dolan, Section 44:14 citing Ruppert, supra. In Fairgate Associates, Inc. v. Adams, 2002 WL1770719, 2002 NY Slip Op. 50288 (App. Term 1st Dept. 2002), the court held that any rent arrears accruing subsequent to the stipulation had to be brought in a separate proceeding:

Landlord's claim for approximately three years of additional rent arrears accruing subsequent to the stipulation, which was first asserted in May 2001, is not properly interposed in this proceeding. The stipulation primarily resolved rent and habitability claims to the date of its execution, and set forth a payment schedule for the agreed balance. Tenant did not waive all claims or defenses with respect to future rent. While tenant may not relitigate issues settled by the stipulation, landlord was not entitled to simply "enter judgment" for later rent-without a trial-if tenant failed to comply with a notice of default. Landlord's claim for post-stipulation arrears, which substantially exceed the original amount in dispute and which accrued years after the date of the stipulation and expiration of the payment schedule, should be addressed in a newproceeding. Our disposition is without prejudice thereto.

Pursuant to New York Law, payments made upon general account with no direction as to their application, the Law requires that the payment be made to the oldest account. See, National Park Bank v. Seaboard, 114 NY 28. Another way to view this matter is that payments must be first credited to prevent an eviction and not to the current rent owed (unless the parties agreed otherwise). See, 1325 Parkway Estate, LLC v. Weathers, N.Y.L.J., 7/23/97, p.28, col. 5 (Civil Ct. Kings County). Here the parties agreed in the stipulation that payments were first to be applied to the outstanding arrears and thus any payments made must be first credited as agreed. See, Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, See, 6.3 Application of [*4]payments.

The evidence of payments made by respondents and the acceptance by petitioners constitute a waiver of any default under the terms of the stipulation concerning the amounts owed. See, Atkins Waste Materials, Inc. v. May, 34 NY2d 422 (1974).

Based upon the foregoing, the Order to Show Cause is granted and the judgment of possession and warrant are vacated. This decision is without prejudice to the petitioner commencing a separate proceeding to recover any amounts owed after July 28, 2006, which is the date of the stipulation of settlement.

This is the decision and order of this Court.

DISTRICT COURT JUDGE

Dated: January 3, 2007

cc:Debra Nathanson and Arthur Nathanson pro se

Michael Mitchell & Mildred Mitchell pro se