Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), entered November 16, 2005. The order granted a motion by tenant to the extent of conditionally staying execution of a warrant.

Order affirmed without costs.

In the present nonpayment summary proceeding, landlord and tenant pro se, who has resided in the subject rent-stabilized apartment for 28 years, entered into a
stipulation on January 28, 2005 granting landlord a final judgment of possession and the sum of $504, with execution of the warrant to be stayed for tenant to pay the judgment amount by a date certain. In addition, the stipulation required landlord to make certain repairs. In the period that followed, a dispute over the repairs arose, resulting in a series of court appearances. During this period, landlord refused to accept rent arrears tendered by the Department of Social Services (DSS) on tenant's behalf, claiming that the amount owed now exceeded the amount of the tender. [*2]After several rounds of motion practice, the court entered the order from which landlord now appeals, providing that DSS and tenant were each to pay a portion of the rent then agreed by the parties to be due, and that the warrant was again to be stayed pending such payment.

In view of the law's abhorrence of the forfeiture of leases (see Lake Anne Realty Corp. v Sibley, 154 AD2d 349, 351 [1989]; 41st Ave. Realty Assoc. v Choices Women's Med. Ctr., 188 Misc 2d 274, 276 [App Term, 2d & 11th Jud Dists 2001]), particularly those for long-standing rent-stabilized tenancies (e.g. 16 Apt. Assoc., Inc. v Lewis, 14 Misc 3d 40 [App Term, 9th & 10th Jud Dists 2006]; J & H Mgt. v Hai, 8 Misc 3d 139[A], 2005 NY Slip Op 51329[U] [App Term, 2d & 11th Jud Dists]), the possibility that tenant was entitled to an abatement based upon a breach of the warranty of habitability, the fact that tenant was prepared to pay the amount found by the court to be due, and landlord's refusal of a tender by DSS of a check for the judgment amount, we find that the court below did not improvidently exercise its discretion in conditionally staying execution of the warrant of eviction (see Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; 835 Carroll St. Corp. v Reap, 11 Misc 3d 132[A], 2006 NY Slip Op 50354[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order conditionally staying execution of the warrant is affirmed.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to reverse the order and deny tenant's motion in the following memorandum:

In my view, tenant failed to demonstrate good cause why the warrant should be further stayed to permit payment of rent arrears accrued over the ten-month course of the proceeding (RPAPL 749 [3]). While substantial compliance, or minimal default, may constitute an appropriate basis for a stay of the warrant in proper circumstances (see e.g. 835 Carroll St. Corp. v Reap, 11 Misc 3d 132[A], 2006 NY Slip Op 50354[U] [App Term, 2d & 11th Jud Dists]), and despite the courts' general abhorrence of forfeitures (see 41st Ave. Realty Assoc. v Choices Women's Med. Ctr., 188 Misc 2d 274, 276 [App Term, 2d & 11th Jud Dists [2001]), there was here no substantial compliance with the terms of the stipulation, which required payment of the $504 judgment amount by February 15, 2005. Rather, the court improvidently exercised its discretion in permitting the proceeding to deteriorate into a pattern of repeated requests for relief, followed by repeated stays and tenant's noncompliance with the terms of the court's orders.

Although landlord may have failed or refused to cash checks provided on tenant's behalf, whether as ongoing partial rent payments or Jiggets relief, no proof was presented below either that these funds would have completely satisfied the arrears to be paid under any of the court's prior orders or that DSS delay was the material cause of tenant's failure to comply with any of the court's orders. By the time the DSS checks in the amount of $504 were tendered in April 2005, they would have failed to cover the original judgment amount, as the stipulation of settlement provided that payments were to be applied first to current rent due. While good cause to vacate a warrant may be found to exist where a full tender of all amounts due is made within a period set by the court (see 16 Apt. Assoc., Inc. v Lewis, 14 Misc 3d 40 [App Term, 9th & 10th Jud Dists 2006]), there is no evidence in the record that such a tender occurred at any time prior to the order appealed from. Moreover, unlike here, none of the cases cited to by the majority involve [*3]numerous stipulations granting repeated stays of eviction (see Lake Anne Realty Corp. v Sibley, 154 AD2d 349 [1989]; 41st Ave. Realty Assoc. v Choices Women's Med. Ctr., 188 Misc 2d 274, supra). By staying the warrant of eviction yet again, the majority effectively dissuades landlords from ever entering into a stipulation with a tenant. Under the circumstances, I would hold that it was an improvident exercise of discretion for the court to further stay execution of the warrant.
Decision Date: August 20, 2007