Appeal from an order of the Civil Court of the City of New York, Kings County (Sabrina B. Kraus, J.), entered October 3, 2007. The order conditionally granted tenants' motion to be restored to possession.

ORDERED that the order is affirmed without costs.

In this nonpayment summary proceeding, the parties entered into a stipulation of settlement, dated July 27, 2007, pursuant to which landlord was awarded a final judgment of possession and the sum of $5,200. The warrant of eviction was stayed for tenants to pay $5,200 by August 31, 2007. In October 2007, tenants were evicted. Thereafter, tenants moved to be restored to possession. In support of the motion, tenants alleged that they had paid rent to landlord through October 15, 2007. The Civil Court conducted a hearing, at which tenant Mary Lea Cock testified that a check in the sum of $6,300 had been mailed to landlord, and had been returned on September 25, 2007. Thereafter, said check plus an additional sum of $1,050, representing September's rent, had been mailed to landlord by next-day delivery on September 27, 2007. The postal receipt was admitted into evidence, over landlord's objection that tenant had failed to lay a proper foundation therefor. The record indicates that the second payment could not be delivered for some unknown reason.

The Civil Court granted tenants' motion to be restored to possession on condition tenants pay landlord $10,020. The court found that the postal stamp marked on the back of the receipt established that tenants had attempted to pay $7,350 on September 27, 2007, but that landlord's office had been closed and delivery of said payment had been unsuccessful.

On appeal, landlord contends that tenants failed to establish good cause to be restored to possession.

Under the circumstances presented, including tenants' attempt to pay the arrears in full, the Civil Court did not improvidently exercise its discretion in excusing tenants' default under the stipulation and in restoring tenants to possession on condition they pay landlord $10,020 (see Clarkstown Hous. Assoc. v Henderson, 17 Misc 3d 134[A], 2007 NY Slip Op 52205[U] [App Term, 9th & 10th Jud Dists 2007]; BJB Realty Corp. v Holloway, 10 Misc 3d 133[A], 2005 NY [*2]Slip Op 52085[U] [App Term, 2d & 11th Jud Dists 2005]; Pennsylvania Leasing Corp. v Urena, App Term, 2d & 11th Jud Dists, Nov. 1, 2004, No. 2004-1447 Q C).

Landlord's remaining contentions are either without merit or not properly preserved for appellate review.

Accordingly, the order conditionally granting tenants' motion seeking to be restored to possession is affirmed.

The decision and order of this court entered herein on October 6, 2009 (25 Misc 3d 128[A], 2008 NY Slip Op 52078[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: November 12, 2010