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Owner gets okay to evict non-payer.

A court has agreed a rent stabilized tenant who failed to pay rent in a luxury condominium should be evicted.

The law firm of Rosenberg & Estis, P.C. announced this week it successfully represented Chelsea 19 Associates in its case againts tenant Warren James.

The Appellate Division, First Department handed down a unanimous decision to reinstate a judgment and warrant of eviction against James who had failed to pay rent at 251 West 19th Street.

The ease involved a luxury building that had been converted to condominium apartments. A non-purchasing tenant protected under Rent Stabilization, James fell into arrears, and the landlord sued for nonpayment of rent. A stipulation of settlement was worked out in court, which provided for a payment schedule. When the tenant failed to make the final payment due under the stipulation, and the landlord asked the Housing Court judge for a judgment and warrant to evict pursuant to the settlement agreement.

Bradley Silverbush and Jeffrey Turkel, partners with Rosenberg & Estis, P.C., handled the case on behalf of the building owners.

They noted that, although the Housing Court had granted the landlord's motion, the tenant secured a half-dozen orders to show cause, seeking to stay the eviction. Seven months after the original due date, and on the sixth show-cause order, the tenant offered to pay the full amount in arrears.

Given that the tenant had a long history of nonpayment, coupled with the fact that he failed to honor the parties' court-ordered settlement agreement, the building owner opposed the motion, and claimed the right to evict the tenant based upon his failure to adhere to the agreement.

The Housing Court judge excused the tenant's late payment, and ordered the landlord to accept the money, notwithstanding the parties' agreement.

The building owner appealed to the Appellate Term, where a panel of three judges rendered a decision finding that the Housing Court should not have excused the tenant's belated tender under the facts and circumstances of this case.

The panel found that there was no legitimate excuse, and that the tenant simply failed to live up to the court-ordered agreement, and reinstated the judgment and warrant of eviction. The tenant then sought and received permission to appeal to the Appellate Division, the second highest court in the state of New York.

In a unanimous decision, the five-justice panel of the Appellate Division affirmed the order of the Appellate Term, reinstated the judgment and warrant of eviction, and allowed the building owner to evict the tenant. The appellate court found that the tenant offered neither a valid excuse nor a meritorious defense for failing to live up to the parties' agreement.

The Appellate Division stated that while the court has discretion not to enforce a stipulation of settlement "where there is evidence of fraud, overreaching, unconscienability, or illegality," the tenant's "claimed difficulty in obtaining funds does not fall under that rubric."

The court specifically held that under these circumstances, the Housing Court "lacks the discretion not to enforce the stipulation."
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Publication:Real Estate Weekly
Date:Feb 3, 2010
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