McKinley Sq., L.P. v Cisse (2014 NY Slip Op 50153(U))

McKinley Sq., L.P. v Cisse

2014 NY Slip Op 50153(U) [42 Misc 3d 138(A)]

Decided on February 7, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

McKinley Square, L.P., Petitioner-Landlord-Appellant, - -

against

Papa Cisse, Respondent-Tenant-Respondent, -and- Mariana Tournay, Respondent-Undertenant.

Landlord appeals from an order of the Civil Court of the City of New York, Bronx County (Jaya K. Madhaven, J.), entered February 14, 2012, which granted tenant's motion to stay execution of a warrant of eviction in a holdover summary proceeding based upon chronic rent delinquency.

Order (Jaya K. Madhaven, J.), entered February 14, 2012, reversed, without costs, and tenant's motion denied. Execution of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

Tenant, without adequate explanation, failed to comply on at least two separate occasions with the unambiguous "time is of the essence" and no default "shall [be] deem[ed] . . . de minimus" provisions of the so-ordered stipulations settling the underlying chronic rent delinquency holdover proceeding. Tenant, in each documented instance, missed the stipulations' strict payment deadlines by tardily tendering rent via postal money orders issued after the agreed upon monthly due date. In the case of the January 2013 payment default tenant first purchased the money order on January 18th, three days after the January 15th payment deadline, and thereafter mailed it to landlord, a violation that can hardly be characterized as de minimus in the circumstances present. "Strict enforcement of the parties' stipulation . . . is warranted based upon the principle that parties to a civil dispute are free to chart their own litigation course" (Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 [1996]). "The forbearance initially shown by landlord in enforcing the strict letter of the payment provisions agreed upon by the parties did not confer upon tenant a license to ignore [her] rent responsibilities with impunity or to make continuous delinquency a litigation strategy" (NKP Reality, LLC v Jennings, 16 Misc 3d 119, 120 [2007]). Given tenant's extensive history of rent defaults, which continued into the probationary period [*2]specified in the stipulations, a stay of execution of the warrant of eviction was unwarranted (see Henry Hudson Gardens LLC v Bareda, 25 AD3d 466 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 07, 2014