Opinion
No. 13–012.
2013-08-9
49 TERRACE CORP., Petitioner–Landlord–Respondent, v. Curtis RICHARDSON, Respondent–Licensee–Appellant, “John Doe” and “Jane Doe”, Respondents–Undertenants.
Turning to the merits, the answer should not have been stricken, since the so-ordered stipulation directing appellant to pay interim use and occupancy “without prejudice,” and adjourning the matter to a specified date, did not authorize the drastic remedy of striking the answer in the event of a payment default by tenant. Even were the rent deposit provisions of RPAPL 745(2) applicable to this fact pattern, appellant's payment default warranted, at most, an “immediate trial” (RPAPL 745[2][c][ii] ), since he made at least one of the use and occupancy payments called for in the stipulation before defaulting ( see La Fabrique Owners Corp. v. La Fabrique LLC, 16 Misc.3d 130 [A], 2007 N.Y. Slip Op 51335[U][App Term, 1st Dept 2007] ). In this posture, there was no basis, statutory or otherwise, to strike appellant's answer.