Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner’s Motion to Restore to Calendar:Papers NumberedNotice of Motion With Supporting Affirmation, Affidavit & Exhibit A 1Affirmation, Affidavit & Exhibits A-E in Opposition 2Premises: 425 Claremont Parkway, Apt. 2G, Bronx, New York 10457DECISION & ORDER Upon the foregoing papers, petitioner’s motion to restore this matter to the Court’s calendar and for entry of a judgment and issuance and execution of a warrant is decided as follows.BACKGROUND & PROCEDURAL HISTORYThis is a holdover proceeding against a Rent Stabilized tenant based upon chronic rent delinquency. Respondent retained counsel and, after several adjournments, the proceeding and Respondent’s motion to dismiss for failure to state a cause of action were settled by Stipulation of Settlement dated June 13, 2018 under which Respondent agreed to pay her arrears of $6527.81 by July 13, 2018 and to pay her portion of the rent — $212.00 per month — by the 10th of each month during a 9-month probationary period commencing once Respondent brought her account down to a zero balance. Petitioner acknowledged that Respondent receives “SSI” (Supplemental Security Income from the Social Security Administration) and is in the “SEPS” (Special Exit and Prevention Supplement) public assistance program, which pays a portion of her rent each month. The agreement provides that if Respondent failed to pay her arrears, or to timely pay her share of the ongoing rent, the proceeding could be restored by motion “for all purposes including the possibility of a judgment and warrant.” The proceeding was discontinued as against “John Doe” and “Jane Doe” based on Respondent’s representation that she is the sole adult occupant.By Stipulation of Settlement dated July 30, 2018 Petitioner acknowledged receipt of $7794.01, which covered all rent due through July 31 and gave Respondent a credit of $601.14 towards her future monthly portion of the rent of $212.00 for August, September and October 2018. The agreement started the clock on the 9-month probationary period, to run from July 30, 2018 through April 30, 2019, and withdrew a Motion to Restore for a judgment and warrant that Petitioner had filed and made returnable on August 2, 2018.Petitioner then filed a second Motion to Restore for a judgment and warrant returnable October 31, 2018 which was withdrawn on that date by Stipulation of Settlement acknowledging Petitioner’s receipt of a payment by money order for $636 “representing all rent and arrears due through 10/31/18″ and requiring Petitioner to “update Respondent’s rent ledger to reflect a credit of $109.60 starting in November 2018″.Now before the Court is Petitioner’s third Motion to Restore for a judgment and warrant which is supported by an attorney’s affirmation, an affidavit of Petitioner’s managing agent sworn to on November 28, 2018, a copy of the October 31, 2018 Stipulation and a rent ledger dated 11/28/18 covering the period of 03/31/2007 through 12/01/2018. Petitioner’s agent asserts that Respondent breached the October 31, 2018 Stipulation by failing to pay her full rent for November 2018. After applying the $109.60 credit from the October 31, 2018 Stipulation, and subtracting a payment received of $433.82, Respondent was “in default of $121.64 through November 2018″, and “would not be prejudiced by restoring this matter to the trial calendar for a resolution.” Petitioner’s rent ledger shows that Respondent moved in to the premises on 12/26/2006, that her current monthly base rent is $697.02 and that there is a monthly offset of $31.96 for “DRIE” (Disability Rent Increase Exemption).In opposition, Respondent explains in her affidavit sworn to on January 4, 2019 that she is on dialysis three times a week and has “been in and out of the hospital” since October 30, 2018 due to having scraped her toe against broken floor tiles in her kitchen that resulted in amputation of her toe. She asserts that she missed her November 10th payment deadline because she was in the hospital and that she had “called management from the hospital” and told them where she was.Petitioner did not submit any reply papers.It is a well-settled principle of equity that courts do not look favorably upon the forfeiture of leases. Sharp v. Norwood (223 AD2d 6, 11, 643 NYS2d 39 [1st Dep't 1996], affd 89 NY2d 1068, 681 NE2d 1280, 659 NYS2d 834 [1997]). In 2246 Holding Corp v. Nolasco (52 AD3d 377, 378, 860 NYS2d 516, 518 [1st Dep't 2008]), a chronic rent delinquency holdover in which the Appellate Division reversed the Appellate Term and reinstated the decision and order of Housing Court Judge Villella, the Appellate Division explained:The policies underlying the rent stabilization laws are generally better served by holding out to a tenant the opportunity usually afforded in a nonpayment proceeding to cure the breach of his rent obligations (Park Summit Realty Corp. v. Frank, 107 Misc 2d 318, 323, 434 NYS2d 73 [App Term 1980], affd 84 AD2d 700, 448 NYS2d 414 [1981], affd 56 NY2d 1025, 439 NE2d 358, 453 NYS2d 643 [1982]).Respondent’s multiple defaults were largely the result of a delay in payment by HRA. Petitioner was aware, at the time of the settlement, that a portion of the amount due was to be paid by HRA. An indigent tenant who resides in an apartment for many years should not be evicted where she has made diligent efforts to comply with the terms of the settlement agreement, only to be stymied by events beyond her control.Here, it is undisputed that, at most1, Respondent owed only $121.64 at the time Petitioner prepared the within motion; that this is a long-term (12-year), Rent Stabilized tenancy that is subsidized by both New York State’s DRIE program and New York City’s SEPS program; and that Respondent, who is disabled and receives SSI benefits, was unable to timely make that payment of $121.64 by November 10th because she was in the hospital due to complications following an injury in her apartment that led to amputation of her toe. Further, the relevant Stipulation of Settlement, the one dated June 13, 2018, does not include a “time is of the essence” or “no breach shall be deemed de minimus” clause. On these facts, the Court finds that the relief sought by Petitioner is unwarranted and the motion for a judgment and warrant of eviction is denied. The rent default was de minimus and Respondent’s medical problems and hospitalization, of which she notified Petitioner, constitute a reasonable excuse for why she was not able to make her November rent payment by the 10th of that month.This constitutes the Decision and Order of this Court, copies of which will be provided to the parties’ respective counsel in the courthouse.Dated: January 23, 2019Bronx, New York
