Barmat Realty Co., LLC v Quow (2013 NY Slip Op 50977(U))

Barmat Realty Co., LLC v Quow

2013 NY Slip Op 50977(U) [39 Misc 3d 151(A)]

Decided on June 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Barmat Realty Co., LLC, Respondent, —

against

Yvette Quow, Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), entered January 5, 2012. The order denied tenant's motion to permanently stay the execution of a warrant of eviction or for alternative relief, in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, and tenant's motion to permanently stay the execution of the warrant of eviction is granted.

In this holdover summary proceeding based upon tenant's alleged failure to sign a renewal lease for her rent-stabilized apartment, after a nonjury trial, landlord was awarded possession and the principal sum of $7,589.05 as against tenant. In its decision after trial, the Civil Court stated that the issuance of the warrant was to be stayed for 10 days pursuant to RPAPL 753 (4) for tenant to return an executed copy of the renewal lease and for payment of the [*2]arrears. It is undisputed that tenant timely returned the renewal lease. However, the Civil Court denied tenant's motion to permanently stay the execution of the warrant of eviction or for alternative relief because tenant had not paid the arrears. We reverse and grant tenant's motion.

Pursuant to RPAPL 753 (4), in a holdover proceeding based upon a claim that the tenant has breached the lease, "the court shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach." This cure period is applicable to a proceeding, such as this one, that is based upon a tenant's failure to sign a renewal lease (Fairbanks Gardens Co. v Gandhi, 168 Misc 2d 128, 129 [App Term, 2d & 11th Jud Dists 1996], affd for reasons stated below 244 AD2d 315 [1997]). If a tenant timely cures the breach upon which the holdover proceeding was predicated, she is entitled to a permanent stay of the execution of the warrant. The Civil Court is not at liberty to add further conditions, which are not found in the statute, to the granting of RPAPL 753 (4) relief (see Pleasantview Assn. v Chen, 2001 NY Slip Op 40635[U] [App Term, 2d & 11th Jud Dists 2001]). As tenant timely cured her breach of the lease, the execution of the warrant should have been permanently stayed.

Accordingly, the order is reversed and tenant's motion to permanently stay the execution of the warrant is granted.