H. Stays, Warrant, Cures Stays, Warrant, Cures

• Jurisdiction: New York

H. Stays, Warrant, Cures

1. Stays of Warrants/Execution/Eviction in Nonpayment Proceedings

If judgment is entered in favor of a petitioner-landlord because of a tenant's failure to answer the petition, the court may stay issuance of the warrant of eviction for up to 10 days from the date of service of the petition.¹⁵⁷⁷ However, the HSTPA amendment also provides that a stay is subject to RPAPL 753.¹⁵⁷⁸ Where a petitioner-landlord obtains a final judgment after trial in a nonpayment proceeding, or if the tenant fails to appear after answering, the court will generally stay issuance of the warrant of eviction until five days have elapsed from the entry of the judgment, subject now to RPAPL 753.¹⁵⁷⁹ The warrant is a nullity when there is a valid tender or payment of the full amount of a nonpayment judgment before the issuance of the warrant.¹⁵⁸⁰ This permits a tenant to pay the judgment amount in full and thereby avoid issuance of the warrant, but a tender for less than the full amount is not a lawful tender.¹⁵⁸¹ The practical effect of this is to enable tenants to withhold rent and have their entitlement to a rent abatement determined by the court without endangering the tenancy (provided the tenant has set aside or otherwise has the financial wherewithal to pay the full amount). In such instances, a judgment will be entered for the amount of the arrears, less any abatement, which judgment must be satisfied within five days for the tenant to avoid eviction. A tenant's application to stay execution of the warrant made more than five days after the warrant's issuance will be denied absent a showing of "good cause."¹⁵⁸² It is prudent practice for a tenant who asserts a claim for a rent abatement in this manner to set aside the entire amount of any rent withheld while the matter is pending.

RPAPL 747-a, which prohibited a stay of issuance of the warrant of eviction for more than five days after entry of judgment absent deposit of the full judgment amount, was repealed by HSTPA.¹⁵⁸³ Prior to the repeal, in theory, but rarely in practice in New York City, proof of payment in full or a deposit into court is required as a condition of granting a stay.¹⁵⁸⁴ The court is privy to the marshals' schedules and may elect to accelerate a hearing to circumvent a deposit requirement.¹⁵⁸⁵ Although some courts are apt to grant stays (that is, those in New York City), others favor removal and are less likely to grant an occupant's application (that is, Nassau and Suffolk counties). From petition to eviction, the process can take 30 to 60 days or more, even under conditions favorable to landlords. ¹⁵⁸⁶

Before HSTPA's enactment, the issuance of a warrant in a nonpayment proceeding terminated the landlord-tenant relationship,¹⁵⁸⁷ but it did not always end the proceeding. HSTPA removed that provision of the law providing that issuance of the warrant cancels the agreement between the landlord and tenant.¹⁵⁸⁸ A tenant may seek to vacate the warrant for good cause shown.¹⁵⁸⁹ That showing will generally require the tenant to demonstrate an ability to pay all the arrears accrued to date.¹⁵⁹⁰ The grant of an order to show is an exercise of the court's general equitable jurisdiction.¹⁵⁹¹ Factors that are considered by the court include the term of tenancy, the occupants of the apartment, the amount owed and the amount that has been paid, the ability and likelihood of payment, and the availability of funds. ¹⁵⁹² Under HSTPA amendments, if the tenants pay the entire amount due, including any current rent that has accrued, at any time prior to execution of the warrant, the warrant will be vacated, unless the landlord can establish that the tenant withheld the rent in bad faith. ¹⁵⁹³

Under HSTPA, issuance of the warrant of eviction no longer cancels the agreement under which the premises are held. But before HSTPA, in a nonpayment proceeding, a landlord could elect to waive the benefit of the statutory cancellation of the lease resulting from the issuance of the warrant by accepting the rent due under the judgment.¹⁵⁹⁴ In the Second Department, a waiver of the warrant will also result if the parties execute a renewal lease after the warrant issues.¹⁵⁹⁵ In the First Department, the warrant can be vitiated by the mere offer of a renewal lease.¹⁵⁹⁶ In certain circumstances, a landlord's acceptance of rent after the issuance of a warrant in a nonpayment proceeding will also vitiate the warrant.¹⁵⁹⁷ No waiver of the warrant will be found if the landlord executes a renewal lease after the issuance of a warrant in a proceeding based on an illegal trade or business. ¹⁵⁹⁸

2. Stays of Warrants/Execution/Eviction in Holdover Proceedings

a. Ten-Day Stay of Warrant of Eviction in Breach of Lease Holdover Proceedings

Under the newly amended RPAPL 753(4), the New York City Civil Court may grant a 30-day stay (increased from 10 days) on the issuance of a warrant in a holdover proceeding brought on the basis of a breach of the lease in order to allow the tenant to cure the breach.¹⁵⁹⁹ The original 10-day provision was enacted in 1982¹⁶⁰⁰ as a legislative response to the common-law rule, set forth in First National Stores, Inc. v. Yellowstone Shopping Center,¹⁶⁰¹ that once a lease has been terminated according to its terms, courts do not have the power to revive the lease by granting a post-termination cure period. This post-judgment cure period in holdover proceedings is limited to residential tenancies in the City of New York and is not available to commercial tenants or residential tenants outside the City of New York.

Following the decision of the Court of Appeals in Yellowstone, tenants served with default notices developed the practice of obtaining injunctions to toll the cure period to preserve the lease until the merits of the dispute could be settled in court. These preliminary injunctions became known as Yellowstone injunctions. Section 753(4) of the RPAPL obviates the need for residential tenants in New York City to seek Yellowstone injunctions in a holdover proceeding based on a breach of the lease by requiring the court to afford the tenant a 30-day post-judgment period to cure the default.

Although RPAPL 753(4) impacts settled property and contract rights, the courts have not directly addressed the issue of its constitutionality. The provision might be justified on a theory of implied consent; a landlord that avails itself of the statutory remedy of a holdover summary proceeding impliedly consents to the statute's 30-day post-judgment cure period. But the Court of Appeals has not construed the provision in this manner. Rather, it has interpreted the provision as "impressing its terms on residential leases and, in effect, authorizing Civil Court . . . to impose a permanent injunction in favor of the tenant barring forfeiture of the lease for the [default] in dispute if the tenant cures within 10 days."¹⁶⁰² Furthermore, the Court has extended the provision's application to ejectment actions, reasoning that otherwise a landlord could frustrate legislative intent by electing to commence an ejectment action rather than a holdover summary proceeding. ¹⁶⁰³

The tenant relief afforded by RPAPL 753(4) is available only if the default is curable within 10 days.¹⁶⁰⁴ If the violation is not curable within 10 days, the residential tenant must seek Yellowstone relief,¹⁶⁰⁵ but a stay may be inappropriate if the default is part of a recurring pattern of objectionable conduct that shows no sign of abating. ¹⁶⁰⁶ In the Second Department, the Civil Court does not have the power to extend the 10-day cure period.¹⁶⁰⁷ The Appellate Term in the First Department has held, however, that if it is not feasible to cure within 10 days, all that is necessary is that the tenant commence to cure within 10 days and pursue the cure in good faith.¹⁶⁰⁸ Nonetheless, even in the Second Department, a de minimis delay in effecting a cure may be forgiven because "the law does not concern itself about trifles." ¹⁶⁰⁹

Although recognizing that a lease violation based on a history of chronic nonpayment is not subject to a 10-day, post-judgment cure period under RPAPL 753(4), the Appellate Term, First Department, has nonetheless invoked the general stay power of CPLR 2201 to avoid leasehold forfeitures in cases of chronic nonpayment by conditioning an indefinite stay on the tenant's compliance with a payment schedule.¹⁶¹⁰ While this approach has been implicitly called into question by the Appellate Term, Second Department,¹⁶¹¹ and is the subject of criticism in at least one commentary,¹⁶¹² it has not¹⁶¹³ been directly considered by the Appellate Division.

b. Extension of the Post-Judgment Cure to Holdover Proceedings Based on Grounds Other Than Breach of Lease

(1) Non-Renewal of a Rent Stabilized Lease

A tenant's failure to execute a renewal lease,¹⁶¹⁴ as required under the Rent Stabilization Code, is not strictly "a claim that the tenant or lessee has breached a provision of the lease."¹⁶¹⁵ Because the RSC's provisions form an implied covenant of the lease, a tenant's failure to sign a renewal lease falls within the broad remedial ambit of RPAPL 753(4) and is curable. ¹⁶¹⁶

(2) Failure to Give Access

Similarly, a tenant's refusal to provide a landlord with access is subject to cure under RPAPL 753(4), whether the proceeding is brought on the ground that the tenant breached a substantial obligation of the lease¹⁶¹⁷ or that the tenant breached the obligation to provide access set forth under the RSC. ¹⁶¹⁸

(3) Nuisance

Under certain circumstances, a landlord may elect to commence a proceeding based on nuisance rather than one based on a violation of a provision of the lease, but if the tenant's conduct is readily curable, it may fall under the broad remedial ambit of RPAPL 753(4).¹⁶¹⁹ If the evidence establishes a pattern of continuity or recurrence of the objectionable conduct that shows no sign of abating, or the tenant refuses to recognize the issue, the tenant will not be...