The respondent moves by way of an order to show cause for an order: (1) staying all proceedings on the part of the petitioner, petitioner's attorney and agents and (2) staying any Sheriff of Nassau County or other enforcement officer from enforcing said judgment and warrant of eviction.

This matter was brought as a commercial non-payment proceeding for the premises located at 1301 Hempstead Turnpike, 1st Floor, Elmont, New York 11003. (Achille Affidavit ¶3) The parties entered into a Stipulation of Settlement on March 6, 2013. The parties agreed on the following points: (1) respondent consents to the jurisdiction of the court; (2) respondent shall pay $2,500 by good remittance to petitioner by March 20, 2013 and $2,500 by April 4, 2013; (3) petitioner shall cooperate with the respondent in the sale of his barbershop business; [petitioner] shall be diligent and in good faith seek to qualify any potential purchaser for free assignment of the lease; (4) respondent shall produce a "bona fide Contract of Sale" and contract deposit cleared in respondent's attorney's escrow account not later than April 30, 2013; (5) if respondent defaults upon the [prior terms], then petitioner shall have a possessory judgment with no stay effective April 30, 2013 and a monetary judgment not to exceed $10,000 less any credits for sums paid; and (6) petitioner shall use good faith to repair the leak at the premises within fifteen days. [*2]

Respondent contends he tendered the first payment on or about March 20, 2013 in the amount of $2,500. The second check [number 189] in the amount of $2,500 was tendered to the landlord on or about April 3, 2013. (Achille Affidavit ¶5) The Municipal Credit Union erred in refusing to negotiate the check despite funds available to cover the payment. (Achille Affidavit ¶6, Respondent's Exhibit C "Municipal Credit Union Letter") Respondent claims he contacted the petitioner via text message on April 12, 13, 18, and 30 as well as via email on April 13, 2013, but the landlord's only reply was an email sent en masse to all tenants regarding smoking on premises. (Achille Affidavit ¶¶7-9, 11-12, 15)

Instead of accepting the arrears, the landlord wants possession of the premises. (Guillan Affidavit ¶¶9, 10) He acknowledges receipt of the first payment on March 20, 2013, but states he received no other payment. (Guillan Affidavit ¶¶4, 6) Petitioner contends that the respondent previously dropped off correspondence in the petitioner's mailbox, which constituted their normal course of dealings. (Guillan Affidavit ¶¶6,8) Petitioner also contends respondent failed to provide a "bona fide Contract of Sale" pursuant to the Stipulation of Settlement. (Guillan Affidavit ¶¶8) Petitioner requests that the motion be denied, the stay lifted, and no new 72 Hour Notice be required. (Guillan Affidavit "Wherefore Clause")

In his reply affidavit, respondent takes issue with petitioner's statement regarding their course of dealings, instead contending that the petitioner came to the business premises and the respondent tendered payment by hand. (Achille Reply Affidavit ¶2) Respondent also alleges he submitted a "Memorandum of Understanding" in place of a "bona fide Contract of Sale." Respondent claims petitioner failed to exercise good faith and diligence in cooperating with respondent in the sale of his barbershop business and complains that the leak articulated in ¶6 of the Stipulation of Settlement has not been repaired. (Achille Reply Affidavit ¶¶6, 7)

In the case at bar, the first issue is whether the respondent materially breached the stipulation by not making timely payment of the second installment due pursuant to the stipulation of settlement. Respondent failed to make the payment solely because of a banking error and upon discovery of said error, the respondent made numerous attempts to reach the landlord and cure the noncompliance. Given the promptness with which respondent attempted to cure its noncompliance and respondent's good faith efforts to reach the landlord, the respondent is not in breach of the stipulation.

New York case law supports the contention that the respondent has not breached where the failure to comply was beyond his control and good faith attempts were made to cure the noncompliance. Although the enforcement of stipulations of settlement, including those in housing court cases, is highly favored by the courts, (see, Chelsea 19 Associates v. James, 67 AD3d 601 [1st Dept, App. Div. 2009]; see also, Hotel Cameron, Inc. v. Purcell, 35 AD3d 153 [1st Dept, App. Div. 2006]; see generally, CPLR §2104) a court always retains the power to vacate a warrant of eviction prior to its [*3]execution for "good cause shown." (RPAPL §749(3); see, Matter of Brusco v. Braun, 84 NY2d 674, 682 [Ct. App. 1994]; 102—116 Eighth Ave. Assoc. v. Oyola, 299 AD2d 296 [1st Dept, App. Div. 2002]) In certain circumstances, the court is permitted to vacate a warrant of eviction and return a tenant to possession even after the warrant has been executed. (Matter of Brusco, at 682) A determination as to whether good cause exists is entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented. (see, 102—116 Eighth Ave. Assoc., at 296)

In Einhorn v. McCloud, 30 Misc 3d 20 [1st Dept, 2010], the Appellate Term affirmed the Civil Court's exercise of discretion in granting the tenant's motions for restoration of possession upon the condition that he paid full rental arrears due. The parties entered into a stipulation and the tenant was evicted upon failure to comply with the terms of the payment schedule. (Id. at 20.) The court took notice of the tenant's promptness and diligence in applying to several charitable organizations for relief to comply with the terms of the stipulation: "[a]n indigent tenant who resides in an apartment for many years should not be evicted where [he] has made diligent efforts to comply with the terms of the settlement agreement, only to be stymied by events beyond [his] control." (Id. at 20-21; see also, Harvey 1390 LLC v. Bodenheim, 96 AD3d 664, 665, 948 N.Y.S.2d 32, 34 [2012](Appellate Division took notice that tenant did not sit idly by or fail to appear in court, but made partial payments and engaged in good faith efforts to secure emergency rental relief)

In light of the given circumstances, this tenant made diligent efforts to comply and should not be penalized for a banking error beyond his control. (see, Einhorn at 20-21; see also, 2246 Holding Corp. v. Nolasco, 52 AD3d 377, 378 [1st Dept, App. Div. 2008])

The second issue is whether respondent failed to provide a "bona fide Contract of Sale" pursuant to the Stipulation of Settlement. This court holds that the respondent has satisfied this requirement because a "Memorandum of Understanding" can be construed as a contract of sale. Respondent entered into a "Memorandum of Understanding" with Joseph Morales to sell his barbershop for a total of $17,000. (Respondent's Exhibit D) The respondent and Morales agreed to include all fixtures, goodwill, name, client list, and remainder of the lease in the agreement, along with an advance of $10,000 to purchase an enumerated list of items including, but not limited to barber work stations, televisions, and furniture. (Respondent's Exhibit D) The memorandum further permits immediate use of the premises and includes the details of a payment plan for the remaining amount due. (Respondent's Exhibit D)

In Cohen v. Securan Realty Corp., 151 AD2d 634 [2d Dept, App. Div. 1989], the parties entered into a letter of understanding regarding the possible sale of a parcel of land. The court reasoned that such a letter of understanding is enforceable if there is a showing that there was a meeting of the minds between the parties, as well as a clear intent to be bound (see also, Volpe v. Incognito, 11 AD2d 1035 [Westchester Cnty. [*4]Sup. Ct. 1960](holding that New York courts will enforce a memorandum for the sale of real property complete on its face); see also, 391 NY Jur. 2d Real Property Sales and Exchanges § 238; but see, Sheehan v. Culotta, 99 AD2d 544 [2d Dept, App. Div. 1984]) While the law is applicable here, the factual circumstances are distinguishable because various changes were made after its initial execution which were not approved by one of the parties; negotiations also continued after the signing of the letter, further evincing the parties' inability to agree to essential terms.

Applying the line of reasoning from Cohen, the "Memorandum of Understanding" is a valid contract in the case at bar because it evinces the parties' meeting of the minds as to the essential terms of the assignment of the lease. In contrast with the parties in Cohen, here both the respondent and Morales are ready to proceed. (no amendments to the memorandum have been submitted thus far) Therefore, the "Memorandum of Understanding" shall be construed as a contract for sale of the business.

The final unresolved issues are whether the petitioner repaired the leak within fifteen days as required by ¶6 of the Stipulation of Settlement and whether the respondent submitted a contract deposit cleared through respondent's attorney's escrow account prior to April 30, 2013 as required by ¶4 of the Stipulation of Settlement. It is unclear from the parties' submitted papers whether these requirements were satisfied. This matter is restored to the court's calendar and a hearing is scheduled for July 22, 2013 for a determination on these issues.

This constitutes the decision and order of the court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 11, 2013

cc:Hirsch & Hirsch, LLP

Neil Eric Weissman, Esq., P.C.

SF/mp