City Court of Mount Vernon, September 25, 2020

Mark Guterman, White Plains, for petitioner.

Cathy Mayo, respondent pro se.

Petitioner commenced this nonpayment proceeding in November 2019 seeking to recover $8,940 in alleged rental arrears for the period from January 2019 to November 2019. The petition alleges that respondent entered into possession of the premises under a written rental agreement where respondent agreed to pay $1,550 each month and that pursuant to said agreement there was due to landlord from respondent $8,940.

On January 2, 2020, the agreed upon return date of the petition, respondent failed to appear. After having reviewed the petitioner's rent ledger for the alleged rent arrears the court determined that petitioner was not entitled to parking, late or attorneys' fees, all of which had been included in the amount sought in the petition. Accordingly, after deducting said fees from the total amount alleged in the petition, the court granted petitioner a final judgment of possession in the amount of $1,080 with a five day stay. On March 13, 2020, the judgment was entered and the warrant of eviction issued. Thereafter, on March 17, 2020, the New York State Unified Court System stayed all pending matters as a result of the ongoing COVID-19 pandemic and as such, the warrant of eviction was never executed. The instant matter was stayed until being restored to [*2]the court's calendar for a conference on September 3, 2020, pursuant to Administrative Order of the Chief Administrative Judge of the Courts AO/160A/20.

On September 3, 2020, the parties appeared and respondent was referred to the Legal Services of the Hudson Valley to obtain counsel. The matter was adjourned to September 23, 2020, for a conference. On September 23, 2020, the court held a conference with petitioner and respondent, who appeared pro se. Petitioner presented a rent ledger for respondent's account{**69 Misc 3d at 880} dated September 22, 2020, which indicated an overall balance of $14,015. The ledger further indicated, however, that a credit to respondent's account of $1,550 was applied on May 19, 2020. Petitioner acknowledged that it had applied respondent's security deposit of $1,550 toward her outstanding rent arrears. At no time during the pendency of this matter did the petitioner amend its petition to include the additional alleged rent arrears that accrued after the judgment and warrant were issued.

It is petitioner's position that pursuant to RPAPL 749 (3) a tenant must tender or deposit all rent amounts due and outstanding and not just the judgment amount for a warrant of eviction to be vacated.^[FN*] As such, petitioner contends that in the instant matter, respondent has an outstanding balance of $14,015 and therefore, the warrant of eviction cannot be vacated. None of the cases cited by petitioner support its position that it is entitled to evict respondent because she has additional outstanding rent arrears that accrued after the judgment and warrant were issued even though the judgment has been satisfied prior to the execution of the warrant. Moreover, all of the cases relied on by petitioner are inapplicable as they were interpreting the old RPAPL 749 (3) which explicitly provided that the landlord-tenant relationship between the parties was terminated upon the issuance of a warrant and only provided for vacatur of the warrant prior to execution upon a showing of good cause. Under the old RPAPL 749 (3) and the case law interpreting the statute, payment of rent arrears alone was not sufficient good cause to support a vacatur.

On the contrary, the new RPAPL 749 (3), enacted under the Housing Stability and Tenant Protection Act of 2019, which applies to the instant matter, no longer terminates the landlord-tenant relationship upon issuance of a warrant of eviction. Rather, the new statute affords tenants greater protection from eviction based upon nonpayment of rent. Specifically, the provision actually requires that where the full amount of rent owed is paid prior to the execution of the warrant, the warrant must be vacated except where the landlord demonstrates that the tenant withheld the rent in bad faith. Moreover, the statute also specifically states that the "[p]etitioner may recover by action any sum of money which was payable at the time when{**69 Misc 3d at 881} the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued." (RPAPL 749 [3].) The plain language of the statute makes it clear that the rent amounts owed as contemplated by the statute are for the period of time before a warrant of eviction is issued.

In the case at bar, a final judgment of possession for petitioner in the amount of $1,080 and a warrant of eviction were issued on March 13, 2020. Respondent's account was credited[*3]$1,550 on May 19, 2020, using her security deposit. Petitioner did not present any evidence to support a finding that the respondent had withheld the rent due in bad faith. Any alleged additional rent arrears that accrued after the judgment and warrant were issued were never properly brought before the court as petitioner did not seek to amend the instant petition nor did petitioner commence a new action seeking to recover said arrears. As such, since a credit to respondent's account in excess of the $1,080 judgment amount, that being the full rent amount due prior to the issuance of the warrant, was applied to respondent's account prior to the execution of the warrant, the warrant must be vacated. (See RPAPL 749 [3].)

Accordingly, the court finds that the judgment has been satisfied, the warrant of eviction is vacated and the petition is dismissed with prejudice.