BACKGROUND

This summary nonpayment proceeding was commenced by JOSE PEREZ (Petitioner) seeking to recover possession of 3285 Westchester Avenue, Store #1, Bronx, NY 10461 (Subject Premises), based on the allegation that CELL PHONE ZONE INC. (Respondent), and ARIF HAQUE(AH)^[FN1] were the tenants of record and had failed to pay rent due under their [*2]lease.

Petitioner issued a written rent demand dated December 1, 2015, seeking $16,010.00 in arrears for a period covering August - December 2015, at a monthly rent of $3162, plus late fees. The petition is dated December 28, 2015. Respondent and AH failed to appear, and on January 18, 2016, Petitioner applied for a default judgment. The application was granted and a warrant of eviction issued on February 24, 2016.

On June 7, 2016, Respondent appeared by counsel, and moved for an order vacating the default judgment and related relief. The motion was granted on that date, pursuant to the parties' stipulation (Stipulation of Settlemet). The Stipulation of Settlement provided:

Parties agree that $23,538.00 is outstanding through 6/30/16, which respondent agrees to pay $23,583.00 on or before 6/12/16.

There is a disputed amount of $12,000.00 that Respondent alleges he paid for Con Edison. Respondent agrees that on or before 7/15/16 he shall provide either proof of alleged payments for the year 2015, or shall pay $6,000 in addition to July rent, as required by the lease, thereafter shall pay $6,000 on or before 8/15/16 in addition to August rent as required by the lease.

On July 13, 2016, Respondent moved for an order restoring the proceeding to the calendar, staying the eviction and imposing sanctions on Petitioner. On that date, Respondent provided Petitioner with bank statements that Respondent asserted were proof of payment to Con Edison, as required by the Stipulation of Settlement, but that Petitioner ultimately rejected as the payments were for an account holder of a different identity. The motion was granted by the court (Saunders, J) on the return date, pursuant to an order that provided:

Respondent tenders and Petitioner is ordered to accept $23,538 in certified funds, which are all arrears through June 2016. Resp alleges mailing July 2016 rent which Petr has not yet rec'd. Accordingly, the judgment and warrant are hereby vacated. In the event July 2016 rent is not received/paid by July 25, 2016, Petitioner may restore for a final judgment. As to the disputed amount of $12,000.00 referenced in the June 7, 2016 stipulation of settlement if this amount is not resolved, either side may restore for appropriate relief.

This constitutes the decision & order of the court.

On September 12, 2016, Petitioner moved for an order restoring the proceeding to the calendar, amending the Petition to date to reflect all arrears due and owing through July 31, 2016, and reinstating the judgment and warrant vacated by the court's July 13, 2016 decision and order. Petitioner alleged Respondent had failed to tender proof in acceptable form of the disputed $12,000, or otherwise pay as required by the Stipulation of Settlement. The motion was granted on default, by the court (Kelly, J) pursuant to an order which provided for the proceeding to be restored on October 5, 2016, at 2:00pm, and amended the petition to include all arrears due through July 2016, which consisted essentially of the disputed $12,000.

On October 5, 2016, Respondent failed to appear, and the proceeding was adjourned to November 3, 2016, to afford Respondent an additional opportunity to appear. The court sent a post-card to Respondent's counsel advising that the proceeding had been adjourned to November 3, 2016.

On November 3, 2016, Respondent failed to appear on time and the court (Alpert,J) entered an order on default providing:

The petition is amended to reflect all arrears owed through November 1, 2016. The [*3]respondents have not appeared today. The prior judgment of possession is reinstated against both respondents, issuance of the warrant is stayed ten days.^[FN2]

This constitutes the Decision/Order of the court.

The warrant of eviction issued December 6, 2016.

On January 27, 2017, Respondent submitted an order to show cause for the court's signature seeking to vacated the default judgment entered by the court on November 3, 2016, and to dismiss the underlying proceeding. The court signed the order to show cause and the motion was made returnable on February 9, 2017.

The court can not discern the precise date of the eviction based on the record submitted, but sometime before January 30, 2017, the eviction took place.

On February 2, 2017, Petitioner obtained new counsel.

On January 30, 2017, Respondent moved for the identical relief sought in the motion returnable on February 9, 2017, but also sought to be restored to possession. The order to show cause was returnable February 7, 2017.

On February 7, 2017, the court heard oral argument on the motion and reserved decision.

For the reasons set forth below, the motion is denied.

The issuance of the warrant of eviction cancels the lease agreement and annuls the landlord-tenant relationship (RPAPL § 7469(3)). However, even after execution of the warrant the court may order restoration to the premises, if the tenant establishes excusable default and meritorious defense, or that the eviction was wrongful [CPLR § 5015(a), (d); Iltit Associates v Sterner 63 AD2d 600; 467 42nd Street, Inc. v Decker 186 Misc 2d 439].

Respondent has failed to set forth an excusable default. Respondent knew of the November 3, 2016 court date. Counsel for Respondent did appear in court on that date, albeit after the default time. Thus on November 3, 2016, Respondent knew that the judgment had been reinstated, that Petitioner had rejected the proofs submitted by respondent purporting to show payment to Con Edison, and that the court had issued an order allowing for issuance of the warrant and Respondent's eviction.

Despite immediate and actual knowledge of the default, Respondent took no action to vacate the default, until submitting the order to show cause on January 27, 2017. Respondent papers offers no explanation at all as to why they took no action between November 3, 2016 and January 27, 2017.

Moreover, the bargain struck by the parties pursuant to the Stipulation of Settlement allowed for execution of the warrant previously issued in March 2016, upon Respondent's failure to prove or pay the disputed $12,000.00. The stipulation essentially put the burden on Respondent to come forward and ask the court for a stay in the event the proof submitted by Respondent was not accepted by Petitioner.

When the court vacated the judgment and warrant on July 13, 2016, the court essentially [*4]deprived Petitioner of that bargained for remedy, acknowledging that the $12,000 dispute had not been resolved, but relegating Petitioner to make an additional motion for "appropriate relief" if the dispute remained unresolved.

Thus Petitioner was not able to execute on the warrant of eviction in place at the time of the Stipulation of Settlement, and despite the fact that Respondent had been required to pay the $12,000 ,if not otherwise established as paid, in two parts with the rent for July and August 2016, Petitioner was not able to execute on the warrant until January 2017, after the order reinstating the original judgment and warrant was issued on November 3, 2016.

As movant has failed to allege an excusable default, and there was no impropriety in regards to the underlying eviction, Respondent's motion is denied. All stays are vacated.

This constitutes the decision and order of the Court.