Davern Realty Corp. v. Vaughn

Appellate Terms of the Supreme Court of New York

Davern Realty Corp. v. Vaughn

161 Misc. 2d 550, 616 N.Y.S.2d 683, 1994 N.Y. Misc. LEXIS 391

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 26, 1994

StatusPublished

Cited by9 cases

This text of 161 Misc. 2d 550 (Davern Realty Corp. v. Vaughn) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davern Realty Corp. v. Vaughn, 161 Misc. 2d 550, 616 N.Y.S.2d 683, 1994 N.Y. Misc. LEXIS 391 (N.Y. Ct. App. 1994).

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Opinion

[551]*551OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs and motion denied.

In this nonpayment proceeding, the court restored an evicted tenant to possession based on a finding that tenant’s difficulties in obtaining payments from the Department of Social Services constituted a showing of good cause for relieving tenant of her defaults under a stipulation. The court relied for authority upon dicta in Lindsay Park Houses v Greer (128 Misc 2d 775, 776-777) to the effect that a warrant may be vacated for good cause shown even after the warrant has been executed.

In our view, the trial court’s ruling is not in accordance with the law as it now stands. The authority to vacate a warrant for good cause shown does not survive execution of the warrant (see, RPAPL 749 [3]; Sutter Houses v Diaz, NYLJ, June 1, 1990, at 25, col 5 [App Term, 2d & 11th Jud Dists]). While relief from a judgment may be granted pursuant to CPLR 5015 (see, e.g., Iltit Assocs. v Sterner, 63 AD2d 600; Third City Corp. v Lee, 41 AD2d 611), no basis for doing so was here shown. Nor, in view of its duration, can it be said that tenant’s default under the stipulation was minimal, inadvertent and promptly cured. As the court below itself acknowledged, the eviction was proper. Under the circumstances, the court erred in restoring tenant.

Kassoff, P. J., Scholnick and Chetta, JJ., concur.

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[551]*551OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs and motion denied.

In this nonpayment proceeding, the court restored an evicted tenant to possession based on a finding that tenant’s difficulties in obtaining payments from the Department of Social Services constituted a showing of good cause for relieving tenant of her defaults under a stipulation. The court relied for authority upon dicta in Lindsay Park Houses v Greer (128 Misc 2d 775, 776-777) to the effect that a warrant may be vacated for good cause shown even after the warrant has been executed.

In our view, the trial court’s ruling is not in accordance with the law as it now stands. The authority to vacate a warrant for good cause shown does not survive execution of the warrant (see, RPAPL 749 [3]; Sutter Houses v Diaz, NYLJ, June 1, 1990, at 25, col 5 [App Term, 2d & 11th Jud Dists]). While relief from a judgment may be granted pursuant to CPLR 5015 (see, e.g., Iltit Assocs. v Sterner, 63 AD2d 600; Third City Corp. v Lee, 41 AD2d 611), no basis for doing so was here shown. Nor, in view of its duration, can it be said that tenant’s default under the stipulation was minimal, inadvertent and promptly cured. As the court below itself acknowledged, the eviction was proper. Under the circumstances, the court erred in restoring tenant.

Kassoff, P. J., Scholnick and Chetta, JJ., concur.

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161 Misc. 2d 550, 616 N.Y.S.2d 683, 1994 N.Y. Misc. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davern-realty-corp-v-vaughn-nyappterm-1994.

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