BACKGROUND

Petitioners-Landlords commenced this non-payment proceeding against Respondent-tenant in this Court on November 21, 2006 concerning the one-family dwelling at 2 Daisy Lane, Levittown, NY.

The parties entered into a stipulation of settlement on March 13, 2008, wherein Respondent deposited at that time $5,000 with the Petitioners and agreed to pay another $19,600 in increments. The payment schedule was as follows: $600 by March 17, 2008, $5,600 by April 1, 2008, $5,600 by May 1, 2008, and $2,800 by June 1, 2008.

The parties also stipulated to converting the nonpayment proceeding to a holdover proceeding wherein all use and occupancy payments made on behalf of Respondent were to be put towards the purchase price of the subject premise.

However, Petitioners were awarded a Warrant of Eviction on April 15, 2008 for Respondent's failure to make the initial $600 payment on March 17, 2008. Subsequently, on April 30, 2008, by an Order to Show Cause, the warrant was stayed pending a hearing and determination on the motion. By proof of affidavit of service, Respondent alleges that [*2]Petitioners' attorney was served on May 1, 2008 with a true copy of the Order to Show Cause together with the papers upon which it was granted. However, Petitioners contend, by proof of a May 9, 2008 letter addressed to Respondent's counsel, that they were only served with a one-sheet copy of the Order without the supporting papers upon which it was granted and had yet to receive any further documentation as promised by opposing counsel. Meanwhile, on May 6, 2008, Respondent was evicted from the premises. As a result, Respondent has amended her Order to Show Cause to include a contempt charge against Petitioners and their attorney for refusal to comply with an Order of the Court entered on April 30, 2008.

Accordingly, there are several questions before this Court:

(1) Is Respondent's receipt of the first page of the Order to Show Cause considered sufficient service of the motion?

(2) Which party carries the burden of informing the sheriff that the warrant has been stayed?

(3) Shall the Respondent's residency be restored?

(4) Should Petitioners and their attorney be held in Contempt for failing to serve the sheriff with the ordered stay of eviction?

The first question of whether Respondent's receipt of the first page of the Order to Show Cause is considered sufficient service of the motion is resolved by CPLR 2101(f) which states:

"The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections." (See also, Neveloff v. Faxton's Children's Hospital and Rehabilitation Center, 227 AD2d 457 [2nd Dept. 1996], citing, Deygoo v. Eastern Abstract Corp., 204 AD2d 596 [2nd Dept. 1994].

In this case, Petitioners' counsel was served with the Order to Show Cause on May 1, 2008, and by law had two days to give notice of the defective service. However, because two days from service fell on a weekend, counsel had until May 5, 2008 to return the papers. Therefore, Petitioners' failure to return the motion constitutes a waiver of Respondent's defective service and Petitioners are considered served as well as aware that the warrant was [*3]stayed.

Secondly, in determining which party carries the burden of informing the sheriff of the stay on the eviction, it is well-settled that the burden lies on the tenant, not the landlord, to inform the sheriff of any stay of the execution of a warrant of eviction ordered by the Court. Chelsea Marina v. Scoralick, 94 AD2d 189,194 (2nd Dept 1983).

There exist no obligation on a landlord to recall the execution of a warrant, when it is incumbent upon the tenant to protect their interests by informing the sheriff of the pending stay. Hospital Service Plan of New Jersey v. Warehouse Production & Sales Employees Union, 76 AD2d 882 (2nd Dept. 1980). Accordingly, in this instance, the Petitioners have attempted several times to evict Respondent from the premises. Clearly, there exists no interest on the part of Petitioners to inform the sheriff of the ordered stay. Therefore, it was the sole obligation of the Respondent to serve the sheriff with a copy of the stay in order to avoid being evicted from her residency.

The Real Property Actions and Proceedings Law provides that the court shall "issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, or, if it is not situated in a city, to any constable of any town in the county." 3 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, §46:3, at 194 [4th Ed]

In addition, a sheriff is not obligated to stop the execution of an eviction until he has been served with a valid copy of an ordered stay. Chelsea Marina, Inc., supra. In the case at bar, neither party informed the sheriff of the stay of eviction, therefore, the sheriff is not at fault for executing the eviction when he possessed a valid warrant to do so and he was not served with the stay.

In determining the third issue of whether Respondent's residency at the subject premise shall be restored, 3 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, §46:7, at 196-197 [4th Ed] states as follows:

. . . [U]nless an eviction was illegally or fraudulently provided by the petitioner-landlord, once the warrant is executed, the court loses jurisdiction over the proceeding and is powerless to open the tenant's default or to vacate the warrant. . . . [E]ven after execution of the warrant, the court retains jurisdiction, in appropriate circumstances, to grant relief from its own judgments or order. This jurisdiction is inherent in the court. However, the discretion to exercise it is contingent upon a showing of compelling facts, circumstances and equities warranting the relief sought.

In this case, Respondent claims that the Petitioners and their counsel knowingly violated a Court order to stay the warrant of eviction. However, the facts are contrary. The warrant was executed by this Court on April 15, 2008, thereafter, the Respondent was served with a 72-hour notice on April 30, 2008. As set forth above, it was the obligation of the Respondent to inform the sheriff, from whom she received the 72-hour notice, that the warrant has been stayed.

Therefore, there were no illegal or fraudulent actions taken on the part of the Petitioners or their attorney against Respondent. As a result, this Court has no jurisdiction to restore said Respondent to residency at the subject premise because no illegal or fraudulent actions can be proven on part of the Petitioners and their counsel. There has been no showing of "compelling facts, circumstances and equities warranting the relief sought."

Moreover, the Respondent claims that she has no access to her personal belongings which were put in storage courtesy of Nassau County Sheriff. In the 72-hour notice served upon the Respondent, she was informed that if she failed to remove her personal belongings they would be placed in storage. Respondent was given the contact information for the storage center and also notified that it was her responsibility to contact the storage facility to regain possession of her belongings. Accordingly, the Petitioners are at no fault because it is primarily the duty of a tenant to remove his possessions from the property in controversy. 3 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, §46:13, at 202 [4th Ed].

Lastly, the Respondent seeks to hold the Petitioners and their attorney in contempt. Precedent holds that in order for an attorney to be held in contempt his conduct must be considered as "fraudulent, malicious or tortious." Chelsea Marina, supra. Accordingly, this Court does not consider such malicious intent to have existed on part of Petitioners' counsel. Since the Court has determined that the Respondent was accountable for failing to serve a notice of stay upon the sheriff, there can be no fault nor malicious intent found on the Petitioners nor their attorney for the Respondent's failure to serve the Sheriff with the notice of stay.

Respondent is responsible for serving the sheriff with the ordered stay on the eviction. The Court finds no fraudulent or malicious intent to have existed on part of said Petitioners or their counsel.

Therefore, Respondent's Order to Show Cause is hereby dismissed. All contempt [*5]charges against Petitioners and their attorney are dismissed and Respondent's request for her residency to be restored at 2 Daisy Lane, Levittown, New York is denied.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:September 5, 2008

cc: Kenneth B. Mock, Esq.

Howard R. Birnbach, Esq.

SF/jmc