Landmark Properties v. Olivo

10 Misc. 3d 1
CourtAppellate Terms of the Supreme Court of New York
DecidedSeptember 30, 2005
StatusPublished
Cited by4 cases

This text of 10 Misc. 3d 1 (Landmark Properties v. Olivo) 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
Landmark Properties v. Olivo, 10 Misc. 3d 1 (N.Y. Ct. App. 2005).

Opinion

OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

This holdover summary proceeding, predicated upon breach of a substantial obligation of the tenancy in the form of harboring a dog, is before this court for the second time (see Landmark Props. v Olivo, 5 Misc 3d 18 [App Term, 9th & 10th Jud Dists 2004]). Shortly before the original appeal was heard, tenants found a new home for the dog in question. Nevertheless, we found that a substantial obligation of the tenancy had been [3]*3ached by tenants’ harboring of the dog, and that the final lent of possession entered in favor of landlord was proper, lowing our affirmance, tenants moved below to vacate the arrant of eviction pursuant to RPAPL 749 (3), citing the evenual removal of the dog as good cause to support vacatur of the warrant. This motion was denied, and tenant Olivo appealed.

Key to tenants’ argument below was a two-month “cure period” granted by the court below in its decision and order issued following the trial. Under the terms of the court’s decision and order, the failure to remove the dog by the end of the two-month period entitled landlord to entry of a final judgment of possession. Landlord did not object to or appeal this “cure period” at the time, and it was not an issue on the prior appeal. It is a central issue on tenant Olivo’s current appeal, however, as tenant Olivo has argued both below and on this appeal that this court’s interim grant of a stay of execution of the warrant, and subsequent grant of a stay, characterized as of “all proceedings,” pending the first appeal, had the effect of tolling the running of the “cure period,” and that therefore the dog was actually removed before the “cure period” expired.

The stays imposed by this court did not operate to toll the running of the “cure period” imposed by the court below following trial. The only statutory provision for a posttermination “cure period” applies to proceedings brought in the City of New York, for which RPAPL 753 (4) provides a mandatory 10-day postjudgment cure period for holdover proceedings involving breach of substantial obligations of the tenancy. If a tenant cures within this period, said tenant’s lease is revived (see Post v 120 E. End Ave. Corp., 62 NY2d 19, 27 [1984]). Elsewhere, the only time available to a residential tenant within which a lease violation may be cured is the time provided in the notice to cure. A termination notice operates to terminate a tenancy if a cure is not effected, and this termination of a tenancy is the basis for a resulting holdover proceeding (see RPAPL 711 [1]; Brodsky v 163-35 Ninth Ave. Corp., 103 AD2d 105 [1984]). Outside the City of New York, the only means to extend the time to cure is injunctive relief (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968] [hereafter Yellowstone]), which relief must be sought within, and must operate to toll, the cure period provided by lease provision or predicate notice (depending upon the type of tenancy at issue) before this period runs and the lease terminates. Otherwise, the courts are powerless to revive the expired lease (see Post, 62 NY2d at 25, 26-27; Yellowstone, 21 NY2d 630 [1968], supra).

[4]*4Contrary to tenant Olivo’s argument, CPLR 2201’s authti [e]xcept where otherwise prescribed by law,” to grant a proceedings upon such terms as may be just (and which u trial court cited in the decision and order after trial), canno operate to revive a lease. Moreover, in the landlord-tenant context, specific statutes, as well as appellate case law, govern the circumstances of stays and other remedial action. The effect of the decision and order after trial was to improperly seek to revive a lease that had terminated by tenants’ failure to remove the dog within the 30-day predicate notice cure period, as confirmed by the finding of the trial court (affirmed by this court on appeal) that they had, in fact, breached a material obligation of their lease (see generally Post, 62 NY2d at 25).

Nevertheless, tenant Olivo contends upon appeal, as tenants did before the court below, that not only did such a post-trial “cure period” properly exist, its expiration was tolled through this court’s grant of stays as contained in our orders dated February 28, 2003 and April 9, 2003. This latter contention must fail on two grounds. First, although landlord may have acceded to the “cure period” prior to entry of the final judgment at the time it was granted, in effect charting its own course in the litigation (see e.g. J & A Vending v J.A.M. Vending, 303 AD2d 370 [2003]), this court’s orders shall not be interpreted, at the behest of one party, so as to prolong relief that the court below had no power to grant, regardless of the parties’ original accession to it. Second, the interim ex parte relief granted by this court on February 28, 2003 (the last day of the “cure period”), by its terms, had the sole effect of staying execution of the warrant pending appeal, as tenant Olivo’s own order to show cause requested. Contrary to tenant’s present contention, this stay of the warrant did not operate to toll the “cure period,” the request for which was nowhere mentioned in the interim relief sought in the order to show cause. By the time this court granted tenant’s motion and ordered a stay pending appeal on April 9, 2003, the “cure period” had already expired.

In this regard, it must also be noted that although this court’s April 9, 2003 order described tenant Olivo’s original motion as seeking a “stay [of] all proceedings,” the motion did not in fact seek such a broad stay, and the relief recited in the decretal paragraph of this court’s order was merely a grant of “the branch of the motion by tenant-appellant for a stay pending appeal.” The natural effect of such language is to refer the reader [5]*5to the said branch of the original motion, which, as noted, requested only a stay of execution of the warrant of eviction. The continued presence of the dog, and any effort that tenants were making to find a new home for it, were nowhere mentioned in tenant Olivo’s motion papers as factors affecting his request for relief.

For these reasons, tenant Olivo’s argument that tenants’ time to remove the dog never actually expired prior to the dog’s removal, due to the various stays on appeal granted by this court, is without merit.

Nor are tenant Olivo’s remaining arguments that tenants should be entitled to vacatur of the warrant for good cause meritorious.

Tenant Olivo argues for relief pursuant to two statutory provisions, RPAPL 749 (3) and CPLR 5240. This latter provision is not applicable to summary proceedings. Although CPLR 5240 is broadly worded, it forms part of CPLR article 52, which concerns itself with the enforcement of money judgments, not judgments of possession in summary proceedings, which fall under the separate ambit of the Real Property Law and the RPAPL.

CPLR 5240 provides:

“The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. Section 3104 [designation of referee] is applicable to procedures under this article.”

As tenant Olivo notes on appeal, this statute has most often been used to preserve judgment debtors’ homes from forced sale to satisfy money judgments.

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Cite This Page — Counsel Stack

Bluebook (online)
10 Misc. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landmark-properties-v-olivo-nyappterm-2005.