RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY RESPONDENT SEEKING TO BE RESTORED TO POSSESSION PAPERS NUMBERED Order to Show Cause, Affidavits & Affirmation Annexed 1-2 Answering Affidavits & Affirmation Exhibits 3-4 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: Petitioner commenced this nonpayment proceeding on or about November 6, 2019, seeking rent it alleged became due for Apartment No.3U, a rent stabilized apartment located at 675 Morris Avenue, Bronx, New York. Respondent appeared pro se and interposed an answer asserting a general denial and other claims. Upon Respondent’s failure to appear on the initial court appearance, Petitioner was granted a default judgment in the amount of $3,044.01. On January 16, 2020, a warrant of eviction issued and Respondent was evicted on February 13, 2020. By order to show cause (“OSC”) dated February 24, 2020, Respondent moved for an order restoring her to possession of the subject apartment. In support of the OSC, Respondent stated that she had been in the hospital and was dealing with family court issues. After argument, by decision and order dated February 26, 2020, the Court issued an order extending all stays through March 10, 2020 for Respondent to pay $11,479.07, the amount of rent and legal fees then outstanding, payment of which would result in her immediate restoration to the apartment. Respondent now once again moves by OSC for an order restoring her to possession of the subject apartment. In support of her OSC, Respondent states in relevant part that she seeks to be restored to possession of the apartment because prior to seeking this relief, she was in the hospital and was dealing with a proceeding involving the Administration for Children Services (“ACS”). Attached to this OSC is a letter from what appears to be a medical doctor. On the return date of the OSC, Petitioner opposed Respondent’s OSC on the ground that a new tenant was in possession and took possession pursuant to a lease for a term which commenced before the date of this OSC but months after the stay imposed in the Court’s last order in February 2020 expired1. After conference between the parties, Respondent was sworn in and testified that she has lived in the subject apartment for about 5 years and that she was admitted to the hospital on February 7, 2020 as corroborated by the attachment to her OSC. Respondent further testified that she waited to seek restoration because she had been hospitalized and because she was dealing with an ACS proceeding. Respondent further testified that the rent arrears had not been paid because she is unemployed and relying on Public Assistance (“PA”)2. Following the passage of the Housing Stability Tenant Protection Act of 2019 (“HSTPA”), the issuing of a warrant for the removal of a tenant no longer cancels the agreement under which the person removed held the premises and no longer annuls the relation of landlord and tenant (see Real Property Actions and Proceedings Law (“RPAPL”) §749 [3]). Instead RPAPL §749 (3) now provides that nothing contained herein shall deprive the court of the power to stay or vacate such warrant for good cause shown prior to the execution thereof, or to restore the tenant to possession subsequent to execution of the warrant (emphasis added). This change reflects a well-known interpretation of the law and practice in the post eviction posture of Housing Court proceedings (see Solack Estates, Inc. v. Goodman, 78 AD2d 512 [1st Dept 1908] and Matter of Brusco v. Braun, 84 NY2d 674 [1994]). Notwithstanding, it has been held that in reviewing requests for restoration, “each application requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payments default(s), as well as a delicate balancing of the equities between the parties” (Parkchester Apartments Co. v. Heim, 158 Misc 2d 982, 607 NYS2d 212 [App Term, 1st Dept 1993]). After reviewing Respondent’s claims, including her testimony as well as the evidence adduced at the hearing, this Court finds that there is no good cause to vacate the warrant of eviction and restore Respondent to possession of the subject apartment. The claims Respondent raised in this OSC were already raised by Respondent and addressed by the Court in its February 26, 2020 order. That Respondent was admitted to the hospital between February 7, 2020 through February 21, 2020, a period of time which predates the date of the Court’s prior order does not explain the delay in Respondent seeking the instant relief. Admittedly, Respondent was already dealing with ACS and was out of the hospital at the time of the Court’s initial order. In addition, there was no testimony or evidence that Respondent was in the hospital at any time thereafter and that this impeded her ability to seek assistance. Moreover, Respondent shows no ability to pay the outstanding arrears, this is not a long-term tenancy and there is now a tenant in possession, a claim which was unrebutted. But even if the arrears were available, under these facts restoration is still not appropriate. Respondent essentially abandoned the subject apartment and cannot be granted the relief she now seeks. Petitioner’s continued receipt of PA shelter payments on her behalf in the amount of $141.40 twice monthly only serves to support a claim by the agency for the recoupment against Petitioner, and the PA payments fall significantly short of the amount due Petitioner under the order. Based on the foregoing, Respondent’s OSC is denied and all stays are vacated. As for Respondent’s property, counsel for Petitioner is directed to investigate their whereabouts and inform Respondent as soon as practicable. This order is without prejudice to any claims to property damage Respondent may have and Petitioner’s defenses thereto. This constitutes the decision and order of this Court. A copy of this order will be emailed to both sides. Dated: June 29, 2020
