Friday, June 23, 2017

RESTORED TO POSSESSION AFTER EVICTION



224-232 ATLANTIC AVENUE INVESTORS, LLC v. Gonzalez, 2017 NY Slip Op 50525 - NY: City Court, Civil Court 2017:

"The Court of Appeals has found that in appropriate circumstances the Civil Court may vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed. Matter of Brusco v Braun, 84 NY2d 674 (1994). The Court of Appeals in Matter of Brusco v Braun, supra cited Solack Estates v Goodman, for this proposition. Solack Estates v Goodman, 78 AD2d 512 (1st Dep't 1980). Solack Estates supra involved a non-payment proceeding where the elderly, long term tenant was vacationing in Florida and defaulted. The landlord obtained a default judgment against her, and she was subsequently evicted. The Appellate Division, First Department found that the Civil Court properly vacated the warrant of eviction and restored her to possession. Additionally, other factors considered by Courts to determine whether good cause exists to vacate the warrant of eviction and restore a tenant to possession are the length of the tenancy, rent regulatory status of the premises, health circumstances and age of the tenant. Parkchester Apts. Co. v Scott, 271 AD2d 273 (1st Dep't 2000).

Here, some of the facts of Solack Estates supra are analogous to the respondent who is eighty-one years old and has resided at the premises for forty-one years. She defaulted as a result of her hospitalization and medical condition. Subsequently, she was evicted and is seeking restoration on the basis of an excusable default, meritorious defense and good cause. First, she was never notified of the proceeding because she was in the hospital. Second, the meritorious defense is the petitioner's failure to comply with the Williams Consent Decree. Third, respondent is a long term, elderly, medically fragile, rent stabilized tenant. These are key factors Courts consider as good cause to vacate the warrant of eviction and restore a tenant to possession. Parkchester Apts. Co. v Scott, supra.
Moreover, respondent has made a greater showing beyond good cause for vacatur of the judgment and warrant based on petitioner's failure to comply with the Williams Consent Decree. Regardless of the circumstances, petitioner would not have been able to proceed with this non-payment because it failed to obtain certification from NYCHA before commencing the proceeding. Therefore, the judgment and warrant could not have been issued.

Based on the foregoing case law and respondent's ability to satisfy CPLR 5015 for vacatur of the default judgment standards, and factual circumstances, respondent has shown good cause to vacate the warrant of eviction and restore her to possession.

Accordingly, the respondent's post eviction order to show cause to be restored to the subject premises, vacate her default and dismiss the petition is granted. Respondent is awarded a judgment of possession as against petitioner and shall be restored to possession within two weeks of the date of this decision. This time frame will allow petitioner an opportunity to restore the subject premises to a habitable condition including the restoration of the kitchen cabinets, bathroom and kitchen fixtures. NYCCCA §110 (c). Upon such restoration, respondent shall be made whole. Since this was not a proper eviction, petitioner to remove respondent's possessions from the storage facility and return it to the subject premises forthwith at petitioner's expense."

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