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Decided on March 23, 2010
Civil Court of City of New York, New York County

96367/09
David P. Haberman, Esq. Rose & Rose 291 Broadway, Suite 1202 New York, NY 10007
(212) 349-3366 Jason Blumberg, Esq.
MFY Legal Services, Inc.
299 Broadway, 4th Floor
New York, NY 10007
(212) 417-3711
Michelle D. Schreiber, J.
The respondent moved, pro se, to be restored to possession[FN1]. Although the petitioner admitted receipt of $2,015.56, it opposed the motion by submitting an affirmation from counsel and an affidavit from the property manager. The petitioner states that after the payment the respondent still owed $663.84 in rent and $1,245 in marshal and legal fees. The petitioner asserts that the respondent did not demonstrate the ability to make the payment and that it was entitled to enforce the judgment and execute the warrant pursuant to Chelsea 19 Assoc. v James, 67 AD3d 601 (1st Dep't 2009). The petitioner asserts further that the respondent "failed to set forth a legally cognizable excuse for failing to timely pay the monies due pursuant to the stipulation and there is no basis to restore Respondent to the subject premises from which [*2]
she [sic] was legally evicted." Petitioner also states that it had pictures taken of the subject premises from the front door after the eviction and that the photographs show "garbage and various items of random detritus" obscuring the entrance; the claim is that the condition presents a safety hazard. Finally, petitioner asserts that it does not believe the respondent lives in the apartment.
A decision/order of this Court on the return date of the motion states, "The resp is a 62 year old man who has resided in the subject premises for 38 years. The resp settled the instant nonpayment case by stipulation dated 12/22/09. The stip has a FJLL of $1,447.88; payment of $700 due 1/25/10 & $747.88 by 2/1/10 with Jan & Feb rent due by the 11th of each month. It is not disputed that resp paid $2,015.56 of the total owed thru 2/10 of $2,679.80. The resp was admitted to the hospital on Jan 27, 2010 and remained hospitalized for 14 days due to 2 cardiac surgeries. The instant OSC was not noticed as a post-evict as resp did not apparently inform the clerk he had been evicted but as per pet's attorney the resp was evicted on 2/19/10. Based upon resp's age & the above circumstances the resp was referred to ACP (assigned counsel project) & has an appointment with a lawyer tomorrow. Accordingly all stays remain in effect & matter adjourned to 3/5/10 at 9:30 am for all purposes. In the interim access is ordered for resp to get personal items from the apt today (3/3/10) from 4-6 pm."
On March 5, 2010 MFY Legal Services, Inc. appeared in Court as "a friend of the Court" and requested an adjournment. The application was granted; the matter was thereafter further adjourned to March 22, 2010 for additional submissions. On March 22, 2010 this Court granted the respondent's motion in a short form order based upon the tender in Court of all rent due through March 2010 plus an additional $1,308.20 in legal/marshal fees. The instant decision/order is issued as indicated in the short form order.
The affirmation submitted by MFY states that the respondent suffers from numerous medical ailments including a serious heart condition and that he has been forced to go on unpaid medical leave from his employment as a result. On January 27, 2010, after making all payments due to date pursuant to the stipulation, the respondent was hospitalized; medical documentation is annexed showing admission to the hospital on January 27, 2010 and discharge on February 9, 2010 after two
cardiac procedures due to "STEMI"[FN2] and placement in the CCU. The discharge plan indicated the respondent was medically stable and would be released to home with family.
The petitioner submits an affirmation from counsel in further opposition to the motion. The affirmation largely repeats, verbatim, the statements in the prior affirmation, but with one significant difference. The petitioner claims that legal and marshal fees now total $2,495, an unexplained increase of one thousand two hundred and fifty dollars, and asserts it is entitled to be made whole. The petitioner reiterates that Chelsea 19 Associates v James precludes granting the relief requested herein as the respondent has failed to demonstrate "good cause." Finally, the petitioner asserts that the respondent's hospitalization for "heart trouble" does not establish that [*3]he suffered a heart attack and "does not qualify as an adequate defense to the stipulation of settlement as contemplated by Chelsea 19 Associates...."
In Chelsea 19 Assoc. v James[FN3] the parties stipulated that over $30,000 was owed in rent through October 31, 2006 based upon a monthly rental of approximately $3,000. The tenant failed to make the final payment of $4,000 due by December 31, 2006, and failed to tender rent for the months of January through March 2007. The petitioner moved to restore the case for a judgment; the motion was granted on default on April 25, 2007. In July 2007 the respondent moved to vacate the default judgment. Although the respondent had more than $25,000 available to cover the rent then due, he failed to offer any excuse for the delay of more than six months since the entry of the default judgment or the failure to tender any current rent due since the default. The Civil Court granted the respondent's motion to vacate the default judgment finding the delay was not willful or deliberate, and without a finding of good cause. The Appellate Term reversed based upon a lack of either an excusable default or a meritorious defense. The Appellate Division affirmed in a decision that indicated that the Civil Court, under those particular circumstances, lacked the discretion not to enforce the stipulation. In the same sentence however, the Appellate Division cited RPAPL

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