Monday, August 1, 2016

STAYING A WARRANT OF EVICTION


In DIORIO v. Harding, 2015 NY Slip Op 31513 - NY: City Court 2015, the court outlined the two methods available - RPAPL 751(1) prior to issuance of a warrant and CPLR 2201 after the issuance of a warrant:

"Simply stated, where a tenant, against whom a nonpayment proceeding is pending, deposits the full amount of the rent due together with costs with the clerk of the court prior to the issuance of the warrant of eviction, the deposit stays the issuance of the warrant. See, Stevens v. Roberts, 183 Misc.2d 174 (County Ct. Monroe County 1999); Everett D. Jennings Apts. L.P. v. Hinds, 12 Misc.3d 139(A) (App. Term 2nd & 11th Jud. Dists. 2006); 114 East 84th Street Associates v. Albert, 128 Misc.2d 753 (N.Y. City Civ. Ct. 1985).

Although RPAPL § 751(1) provides a tenant with a self help means to effect a stay of the issuance of a warrant by depositing all rents due and costs with the clerk of the court, this section does not prohibit the tenant from seeking a stay and an eventual vacatur of the warrant after the warrant has been issued. In fact, after a warrant has been issued in a nonpayment proceeding, a stay of the warrant under RPAPL § 751(1) is no longer viable. See, Everett D. Jennings Apts. L.P. v. Hinds, supra. But does that mean that a tenant is foreclosed from seeking a stay of the warrant by other means? No.

In the case at bar, the Landlord argues that since the Respondent did not deposit all of the rents due including costs with the clerk of the court before the issuance of the warrant in this case, the Respondent is precluded from seeking and obtaining a stay. See, Affirm. of C. Davis, ¶ 3. This argument is misplaced. As previously stated, a court may stay the execution of a warrant of eviction pursuant to CPLR § 2201, which permits stays "in a proper case, upon such terms as may be just," even though the tenant has not paid rent and court costs as required for a stay under RPAPL § 751. See, Canigiani v. Deptula, 59 Misc.2d 401, 299 N.Y.S.2d 234 (Dist. Ct. 1969). A court's power to grant a stay of execution of a warrant in a particular case is not derived solely from the RPAPL § 751 et seq., but from CPLR § 2201 and UCCA § 212. See, Pepsi-Cola Metropolitan Bottling Co., Inc., v. Miller, 50 Misc.2d 40 (N.Y. City Civ. Ct. 1966); Novick v. Hall, 70 Misc.2d 641 (N.Y. City Civ. Ct. 1972)(Court stated that it is not divested of power to vacate or to extend a stay after issuance of warrant of eviction).

Hence, the Landlord's argument that the Respondent was neither entitled to request nor was the Court permitted to grant a stay of execution of the warrant in this case is wholly without merit. Id. Interestingly, the Landlord did not cite any case law authority to support his argument that the Respondent was not entitled to a stay of execution of the warrant or that the Court was prohibited from granting a stay of execution of the warrant in this matter. Further, it is abundantly clear that not only does the Court have the inherent authority (Novick v. Hall, supra) and the statutory authority (203 East 13th St. Corp. v. Lechycky, supra; Canigiani v. Deptula, supra) to stay execution of the warrant of eviction, but also the authority to vacate a warrant of eviction for "good cause" shown. See, Harvey v. Bodenheim, supra; Brusco v. Braun, supra."

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