450 Clinton, LLC v. Bowe

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 24, 2019
• Docket: 2019 NYSlipOp 50828(U)
• Status: Published

Opinion

450 Clinton, LLC, Appellant,

against

Christopher D. Bowe, Respondent.

Law Offices of Scott D. Gross (Scott D. Gross of counsel), for appellant. The Legal Aid Society (Kip Bastedo of counsel), for respondent.

Appeals from orders of the Civil Court of the City of New York, Kings County (Kimberley S. Slade, J.), dated November 2, 2016 and November 17, 2016. The order dated November 2, 2016 granted tenant's motion for relief from a final judgment and warrant to the extent of staying the execution of the warrant until November 7, 2016 for tenant to make payment of the arrears and the rent for November 2016 in a nonpayment summary proceeding. The order dated November 17, 2016 granted tenant's motion to vacate the final judgment and warrant upon tenant's tender in court of the arrears and the November 2016 rent.

ORDERED that the appeal from the order dated November 2, 2016 is dismissed as moot; and it is further,

ORDERED that the order dated November 17, 2016 is modified by providing that the branch of tenant's motion seeking to vacate the final judgment is denied; as so modified, the order dated November 17, 2016 is affirmed, without costs.

In this nonpayment proceeding, landlord appeals from an order of the Civil Court dated November 2, 2016 which granted tenant's motion for relief from a final judgment, entered after a nonjury trial, and warrant to the extent of staying the execution of the warrant until November 7, [*2]2016 for tenant to make payment of the arrears and the rent for November 2016. Landlord also appeals from an order of that court dated November 17, 2016 which, upon tenant's tender in court of the arrears and the November 2016 rent, granted tenant's motion to vacate the final judgment and warrant.

In the circumstances presented, including tenant's tender of all the arrears, his 37-year occupancy and the potential forfeiture of a valuable rent-stabilized tenancy, the Civil Court, in its November 17, 2016 order, did not improvidently exercise its discretion in vacating the warrant for good cause shown (see RPAPL 749 [3]; 2246 Holding Corp. v Nolasco, 52 AD3d 377 [2008]). However, no basis was shown to vacate the final judgment, which was properly entered following a trial (see Kew Gardens, NY, LLC v Saltos, 10 Misc 3d 145[A], 2006 NY Slip Op 50135[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The appeal from the November 2, 2016 order is moot (see State of New York v General Elec. Co., 103 AD2d 985 [1984]), and we decline to reach the issues presented on the appeal therefrom (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 717 [1980]).

Accordingly, the appeal from the order dated November 2, 2016 is dismissed as moot and the order dated November 17, 2016 is modified by providing that the branch of tenant's motion seeking to vacate the final judgment is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 24, 2019