104 Misc. 2d 642 | N.Y. City Civ. Ct. | 1980
OPINION OF THE COURT
Landlord brought this nonpayment summary proceeding to recover a rental balance of $633.20 which included $56 in legal fees. Upon tenant’s default, a judgment for possession only was entered and, thereafter, a warrant of eviction issued. Subsequently, on November 13, 1979, tenant and landlord’s
Landlord’s agent testified that he did not intend to reinstate tenant’s tenancy by accepting the $656.40 from her on November 30, 1979; but, tenant disagreed, testifying that the agent promised her that by her payment she was back in good standing; and, that both agreed that she would pay the balance of $293.40 to cover her entire indebtedness through November, 1979, when the agent completed all of the repairs on the listing he wrote and signed; and, that thereafter an adjustment would be worked out to compensate tenant for the deprivations she sustained because of landlord’s breach of the
Counsel for landlord argued at the motion hearing that landlord had an absolute right under the holding in New York City Housing Auth. v Torres (61 AD2d 681) to cause the warrant of eviction to be executed.
Counsel for tenant cited in opposition J A R Mgt. Corp. v Foster (99 Misc 2d 315), where the court based the grant of vacatur on the wrongful, unjust conduct of the landlord. In that nonpayment proceeding, the landlord accepted what the court (supra, p 317) called "the exact amount of the possessory judgment” after the warrant of eviction based on tenant’s default had been issued. Thereafter, landlord caused the warrant to be executed and the tenant evicted. The court vacated the warrant and the underlying default judgment, rendered a judgment of possession in favor of the tenant, and, ordered the issuance of a warrant for the restoration of the tenant to possession. This court believes that the foregoing conclusion is sound under the holding of the Appellate Division, First Department, in Matter of Walker v Ribotsky (275 App Div 112, 114), wherein the Appellate Division said: "If, therefore, before the warrant is executed, the tenant pays and the landlord accepts the rent found to be due and owing * * * the landlord will be deemed to have assented to the continuance of the tenancy”. Although Matter of Walker v Ribotsky (su
Landlord’s reliance upon the word "payment” in the dicta of Torres is not well placed because, in the case at bar, we have gone past the point of "payment” to "acceptance”. What is overriding is that good cause must be shown to justify vacatur, and, payment and acceptance are only elements in evaluating good cause. Acceptance, per se, is a very strong consideration. For instance, a city Marshal faces disciplinary penalty if he executes the warrant after a landlord accepts the total amount of arrears in a nonpayment proceeding. (Directive of New York City Dept of Investigation, dated April 23, 1979.) Yet, an acceptance may be qualified. In 225 West 16th St. Corp. v Diaz (NYLJ, Jan. 30, 1980, p 10, col 3), vacatur was denied where landlord’s acceptance was "without prejudice by directive of the court.” Accordingly, the circumstances surrounding the acceptance will determine the weight and worth of the acceptance in the search for good cause.
Where, as here, the payment and acceptance were part of a written agreement under which tenant was induced to pay landlord’s agent a sum of money in excess of the total amount demanded in the petition, in reliance upon written promises which reasonably interpreted intended that tenant continue in possession, execution of the warrant would be unfair and unwarranted. (See Pamela Equities Corp. v De La Paz, NYLJ, March 13, 1980, p 11, col 4; Park West Vill. Assoc. v Ademola, NYLJ, Jan. 22, 1980, p 5, col 1; Adams Realty Co. v Williams, NYLJ, May 25, 1979, p 6, col 1; Stuyvesant Realty Co. v Charles, NYLJ, Dec. 7, 1979, p 5, col 1; Coors Mgt. Co. v Flynn, NYLJ, Jan. 25, 1979, p 10, col 1.)
In addition, tenant has made the requisite showings of excusable default and a meritorious defense. Landlord’s breach of the warranty of habitability was admitted by landlord’s agent; and, tenant’s claim of excusable default has not been controverted. There had been an earlier proceeding (Index No. L&T 83919/79) in which rent arrears were de
Accordingly, tenant’s motion is granted, the warrant of eviction and the underlying default judgment are both vacated, the petition is dismissed, and tenant is entitled to a judgment of possession. Landlord’s claims for attorney’s fees and costs are denied.