Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Papers Numbered Order to Show Cause, Affidavit & Affirmation in Support, Memo of Law, Exhibits 1 Affirmations in Opposition, Exhibit 2 Digest-Index Classification:Landlord and Tenant — Warrant of Eviction — Determination of Amount Commercial Tenant was Required to Tender to Landlord to Vacate Warrant Pursuant to RPAPL 749 (3) OPINION OF THE COURT Petitioner commenced this nonpayment commercial landlord-tenant matter by filing its notice of petition and petition on October 19, 2023 (see NYSCEF Doc. Nos. 1, 2). By decision and order dated January 2, 2024, the court awarded petitioner a money judgment in the amount of $10,656.16, a final judgment of possession and a warrant of eviction to issue forthwith, as a result of respondents’ failure to answer or appear (see NYSCEF Doc. Nos. 8, 9). Respondent makes the *2 instant Order to Show Cause seeking to vacate the warrant of eviction pursuant to RPAPL 749. Petitioner opposes. At the commencement of this nonpayment action, petitioner claimed respondent owed rent arrears through September 2023, in the amount of $10,408.54 (see NYSCEF Doc. No. 1). Upon respondent’s default, another judge of this court ordered a money judgment against respondent in the amount of $10,656.16, broken down as follows: $10,408.54 for rent arrears as set forth in the petition; interest computed from October 19, 2023; and costs of $50.00 (see NYSCEF Doc. No. 9). In the instant order to show cause, respondent states it is able and ready to pay the judgment in full (see NYSCEF Doc. No. 39, 2; NYSCEF Doc No. 41). Consequently, respondent requests the court vacate the warrant of eviction pursuant to RPAPL 749(3). In opposition, petitioner argues that in order to vacate the warrant pursuant to RPAPL 749, respondent must deposit or tender all rent due through March 2024. Petitioner submits its rent ledger, which indicates that through March 2024, respondent’s rent arrears have increased to total $37,950.00 (see NYSCEF Doc. No. 48). A basic principle of New York jurisprudence is that the law abhors a forfeiture (see Mooney v. Byrne, 163 NY 86 [1900]; Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352 [1st Dept 2005]). In furtherance of this principle, the Legislature enacted the Housing Stability and Tenant Protection Act of 2019 (HSTPA), which expanded protections afforded to tenants of both residential and commercial properties. Prior to the enactment of the HSTPA, RPAPL 749(3) gave a court the discretion to vacate a warrant “for good cause shown prior to the execution thereof” (RPAPL former §749[3]). Effective June 14, 2019, RPAPL 749(3) added the requirement that a court vacate a warrant of eviction upon respondent’s “tender or deposit with the court of the full rent due at any time prior to its execution, unless the petitioner establishes that the tenant withheld the rent due in bad faith” (RPAPL 749[3], as amended by L 2019, ch 36, pt M, §19). The statute further states that in such circumstances: Petitioner may recover by action any sum of money which was payable at the time when the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any provision for payment of rent. (id.). “The plain language of the statute makes it clear that the rent amounts owed as contemplated by RPAPL 749(3) are for the period of time before a warrant of eviction is issued” (1697 Amsterdam Assocs. LLC v. Saeed, 77 Misc 3d 1235 [A] [Civ Ct, New York County 2023] [citations omitted]). Here, the court ordered a warrant of eviction to issue forthwith by decision and order dated January 2, 2024 (see NYSCEF Doc. Nos. 8,9). Petitioner’s rent ledger indicates that as of January 1, *3 2024, respondent owed rent arrears in the amount of $28,621.18 (see NYSCEF Doc. No. 48). Therefore, respondent must tender $28,621.18, to petitioner to vacate the warrant of eviction pursuant to RPAPL 749(3). Accordingly, it is hereby ORDERED, that respondent’s Order to Show Cause is granted to the extent that the execution of the warrant of eviction is stayed 10 days for respondent to tender $28,621.18 to petitioner by bank check or wire transfer, and petitioner must receive payment on or before March 15, 2024; upon payment, respondent shall move this court by order to show cause to vacate the warrant of eviction, annexing thereto proof of such payment. If payment is not made and received by March 15, 2024, and if respondent fails to move this court by order to show cause with proof of such payment by March 15, 2024, all stays are lifted and petitioner may proceed forthwith with execution of its warrant of eviction upon service of its Marshal’s Notice. This Order shall be self-executing. This constitutes the decision and order of the court. Dated: March 5, 2024
