In this nonpayment summary proceeding, the parties agreed to a final judgment of possession, with a warrant of eviction stayed for tenant to pay $2,200.12 by April 17, 2019. The judgment and warrant were entered on April 29, 2019. Tenant failed to make the required payment on time and was legally evicted by the City Marshal sometime in May of 2019. This is the tenant's second post-eviction application to be restored to the subject premises. Both parties are represented by counsel for the purpose of this application.

Tenant is a recipient of a Section 8 voucher administered through CVR New York. He appeared in court on April 3, 2019 with his counsel from Legal Services of the Hudson Valley. On that date, the parties agreed to a judgment in the amount of $2,200.12 for all rent due and [*2]owing through April 30, 2019, with a stay through April 17, 2019. Tenant is alleged to have visited the Department of Social Services ("DSS") and the Bridge Fund for rental arrears assistance, however he was hospitalized and then incarcerated shortly thereafter. Counsel for respondent maintains that she confirmed the respondent's incarceration and hospitalization with respondent's care coordinators from CHOICE of New Rochelle, an advocacy group working with disabled individuals to prevent their homelessness. Because of the hospitalization and incarceration, respondent was unable to complete the arrears assistance applications and satisfy the judgment by the stay date for the execution of the warrant.

Counsel for the respondent filed an order to show cause, which was signed by this court on May 16, 2019. Respondent at the time was unaware he had received a 72-hour notice or been locked out of the apartment due to his hospitalization and incarceration. On May 17, 2019, the parties appeared before the court for the return of the order to show cause. The court declined to allow re-entry to the apartment but agreed to stay the re-letting of the premises through May 30, 2019.

On May 29, 2019 respondent filed another order to show cause, which was signed by this court and returnable on June 6, 2019. Respondent again seeks reinstatement to possession of the subject premises and submits a guarantee letter from DSS for the full amount of rent due and owing through May 2019.

On June 6, 2019 petitioner submitted opposition to the order to show cause contending that respondent is barred from seeking relief to be restored to possession because it was previously denied on May 17, 2019. Petitioner also argues that respondent was a nuisance and had unauthorized occupants in the apartment before being evicted.

Respondent in his reply argues that he has a right to seek his reinstatement to the premises based on good cause. Respondent also attaches to his moving papers a copy of a check for the June rent from Choice of New Rochelle. Additionally, it is undisputed that Section 8 has paid its share of tenant's rent through June. In his reply, respondent correctly argues that if the petitioner was seeking termination of the lease based on nuisance, or his undesirability as a tenant, their option was to bring a holdover proceeding pursuant to RPAPL 711(1), not a nonpayment proceeding under RPAPL 711(2), seeking payment of rental arrears.

The issue presented is whether or not there is good cause, and whether the facts of this case present appropriate circumstances for the court to order vacatur of the warrant of eviction and restoration of tenant to possession of Apartment 10F at 203 Gramatan Avenue in Mount Vernon.

RPAPL § 749(3) provides that the issuance of a warrant "cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant. Nonetheless, it has long been clear that even after execution of the warrant, for "good cause," (Parkchester Apartments Co. v Scott, 271 AD2d 273, 273, 274 [1st Dept, 2000]), or pursuant to CPLR § 5015(d) where there are "appropriate circumstances," a court may vacate the warrant and reinstate a tenancy (Davern Realty Corp. v Vaughn, 161 Misc 2d 550 [App. Term 2nd Dept 1994]; Matter of Lafayette Boynton Hsg Corp. v Pickett, 135 AD3d 518 [1st Dept 2016] quoting Brusco v Braun, 84 NY2d 674, 682, 621 NYS2d 291 [1994]). Indeed, [e]ach application under RPAPL § 749(3) requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of [*3]the payment default(s), as well as a delicate balancing of the equities between the parties....(Parkchester Apartments Co. v Helm, 158 Misc 2d 982, 983-984, [App. Term, 1st Dept 1993]). 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. (102—116 Eighth Ave. Assoc. v. Oyola, 299 AD2d 296, 749 NYS2d 724 [1st Dept 2002]).

Examining the facts of this case, the Court finds that the failure of the tenant, who is a Section 8 and Choice Care recipient, to satisfy the judgment by a date certain which resulted in his eviction, was minimal and inadvertent, as it was due to his hospitalization and incarceration. Respondent has shown firm commitments of funds from agencies to promptly cover all arrears to date, and as such, this Court finds good cause and appropriate circumstances to restore the respondent to the premises, which will cause no obvious prejudice to landlord.

Accordingly, tenant's order to show cause is granted on condition that he pay all outstanding arrears, court costs, and marshal fees by June 22, 2019. Tenant shall be restored to possession upon the aforementioned payments. If tenant fails to make said payments, by June 22, 2019, the order to show cause will be denied in its entirety. The court will mail the parties' counsel copies of this Decision and Order, or otherwise notify them that copies of this Decision and Order are available for pick up at the courthouse .

This constitutes the Decision and Order of this Court.