APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

That branch of the motion by tenant-appellant seeking to be restored to possession pending appeal is granted on condition tenant-appellant pay landlord-respondent the sum of $2,368.74 within 15 days of the date of the order hereon. Tenant-appellant shall be restored to possession forthwith upon making the payment. Any application for an enlargement of the time to make payment shall be accompanied by a commitment from the Department of Social Services or other proof of the ability to make payment.

That branch of the motion by tenant-appellant seeking a stay pending determination of the appeal granted on condition that tenant-appellant, after being restored, continue to pay rent and/or use and occupancy to landlord-respondent as it becomes due at the rate of $789.58 per month for the period commencing with the date of her restoration to possession and on the further condition that she perfect the appeal by October 1, 2004.

That branch of the motion by tenant-appellant seeking to punish landlord-respondent for contempt is severed.

In this nonpayment proceeding, the petition, filed February 4, 2004, demanded $1,453.91, consisting of alleged monthly rent of $811.91 for January 2004, a December 2003 balance of $537 and legal fees of $105. The petition and notice of petition were served by conspicuous-place service. A default final judgment was entered on April 6, 2004, awarding landlord possession only, and a warrant issued that day. The warrant was executed on April 27, 2004. Tenant thereafter moved in the court below to be restored to possession, asserting, inter alia, that she had no notice of the proceeding prior to the eviction; that her mailbox had been broken into on several occasions; that she had made partial payments; and that she was being overcharged. The matter was set down for a traverse. After the traverse, at which the process server did not appear because he was allegedly out of the country, the court denied tenant's motion based on its finding that missing mail was not as big a problem as tenant asserted it to be.

On June 16, 2004, this court signed an order directing landlord to show cause why tenant should not be restored to possession pending appeal. The order to show cause contained a stay of reletting and removal of tenant's possessions from the premises.

In support of her application, tenant asserts that she was at home at the times that the process server allegedly attempted service and no one knocked on her door. Tenant also documents her claim that she had lodged complaints with the Postal Service with respect to the stolen mail. She further claims that she is being overcharged (1) because her rent is $789.58, consisting of base rent of $767.62 and an increase for major capital improvements of $21.96, and not $811.91 as alleged by landlord, (2) because the MCI increase took effect in January 2004 and not December 2003 as demanded by landlord, and (3) because landlord demanded a November 2003 balance yet stipulated in a prior proceeding that all arrears due through November 2003 were paid. Tenant also shows proof that December 2003 rent of $767.62 and January 2004 rent of $796.26 were paid prior to issuance of the warrant. Tenant claims that she was denied her day in court because neither the process server nor his logs were produced.

Landlord opposes tenant's motion on the grounds that tenant delayed a month from the time of the Housing Court's order before seeking relief from this court; that the apartment has been renovated and re-let; and that tenant's pattern is to fall deeply into arrears and to delay eviction proceedings by bringing on numerous orders to show cause before she finally makes payment.

In reply, tenant, inter alia, denies that the alleged new tenant has entered into possession of the apartment.

By order to show cause dated July 6, 2004, tenant moved to punish landlord and its attorneys for contempt for violating the stay contained in this court's order to show cause dated June 16, 2004 by, inter alia, removing her possessions from the apartment on June 21, 2004. The order to show cause consolidated the two motions for disposition, directed service at the premises upon the alleged new tenant, directed landlord and it attorneys to appear at a hearing and enlarged the return date of the first order to show cause. The alleged new tenant has not appeared. Landlord and its attorneys failed to appear at the hearing. At the hearing, tenant submitted photographic proof that the apartment is undergoing renovations and is not occupied.

We now grant tenant's motion to be restored to possession pending appeal (see Brooklyn Props. v Shade, NYLJ, Feb. 11, 2003 [App Term, 2d & 11th Jud Dists]).

Inasmuch as the minutes of the traverse hearing have not yet been transcribed, we are unable to determine whether tenant has established a likelihood of success with respect to her application to vacate the default.

However, tenant, at the very least, has shown a likelihood of success in that she has asserted, and landlord has acknowledged, that she paid a total of $1,563.68 toward the December 2003 and January 2004 rent prior to the issuance of the warrant. The petition sought only $1,453.91 and, upon a default, this is the maximum amount of rent that was and could have been found to be owed, even if a money judgment had been awarded (Murray v Rudolf Bass, Inc., 226 AD2d 1068 [1996]; Port Chester Hous. Auth. v Turner, 189 Misc 2d 603 [2001]). Inasmuch as tenant paid landlord more than the amount of rent sought in the petition and these payments were not earmarked toward another obligation, it appears at this juncture that the warrant should not have issued (RPAPL 751 [1]; Bentone Realty v Jimenez, NYLJ, Mar. 28, 1991 [App Term, 9th & 10th Jud Dists]; Matter of Vaile v Moritt, 222 NYS2d 290 [1961]).

In view of the fact that landlord has not responded to tenant's assertions with respect to the proper amount of the legal regulated rent, we condition restoration upon payment of arrears only at the rate of $789.58 per month.

Pesce, P.J., and Aronin, J., concur.

Patterson, J., taking no part.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by defendants-appellants for reargument or in the alternative leave to appeal to the Appellate Division denied.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by landlord-respondent for enlargement of time to submit respondent's brief granted, and said brief shall be served and filed within 21 days of the date of the order hereon.

Appellants, if they be so advised, may serve and file a reply brief within 14 days after the filing of the respondent's brief.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by the People to enlarge their time to serve and file a respondent's brief is granted, and said brief shall be served and filed within 21 days of the order hereon.

Defendant, if he be so advised, may serve and file a reply within 14 days of the filing of the respondent's brief.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant seeking to stay execution of the judgment of conviction pending determination of the appeal is granted on condition that the appeal is perfected by October 1, 2004; otherwise stay vacated.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by plaintiff-respondent to enlarge time to submit a respondent's brief is granted, and said brief shall be served and filed within 21 days from the date of the order hereon.

Appellant, if he be so advised, may serve and file a reply brief within 14 days after the date of filing of the respondent's brief.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant seeking, in essence, to vacate dismissal of the appeal is granted on condition that the appeal is perfected by October 1, 2004; otherwise motion denied.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant to vacate dismissal of the appeal is granted on condition that the appeal is perfected by October 1, 2004; otherwise motion denied.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant for poor person relief and assignment of counsel is denied.

Defendant was convicted of a violation and is not subject to incarceration (cf. People v Farinaro, 36 NY2d 283).

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

That branch of the motion by defendant-appellant seeking to vacate dismissal of the appeal granted on condition the appeal is perfected by September 3, 2004; otherwise motion denied.

That branch of the motion seeking to reinstate and continue the stay of execution of judgment pending determination of appeal is granted.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant for an extension of time to take an appeal is granted on condition the appeal is taken within 30 days of the order hereon.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by plaintiff-appellant for reargument, or in the alternative, leave to appeal to the Appellate Division denied.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant for leave to appeal is denied.