Opinion
No. 570033/12.
2012-07-26
72A REALTY ASSOCIATES, L.P., f/k/a 72A Realty Associates, Petitioner–Landlord–Appellant, v. G. Anthony MERCADO, a/k/a Gonzalo Mercado, Mayra Rocafort Mercado, a/k/a Mayrah Rocafort, Respondents–Tenants–Respondents, and Maritza Mercado, “John Doe” and “Jane Doe”, Respondents–Undertenants–Respondents.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated November 28, 2011, which, inter alia, denied its motion for summary judgment on the petition in a holdover summary proceeding and for Rule 130 sanctions and granted the cross motion of respondents tenant and undertenant for summary judgment dismissing the petition.
Present: TORRES, J.P., SCHOENFELD, SHULMAN, JJ.
PER CURIAM.
Order (John H. Stanley, J.), dated November 28, 2011, modified to deny respondents' cross motion, reinstate the holdover petition, grant petitioner-landlord's motion for summary judgment on its cause of action for possession, and permanently stay execution of the warrant of eviction on condition that respondents tender post-petition use and occupancy in an amount and within a time to be determined by Civil Court.
Since the record established beyond factual dispute that tenant failed to timely sign the proffered renewal lease ( seeRent Stabilization Code [9 NYCRR] § 2524.3[f] ), landlord was entitled to summary judgment on its possessory cause of action ( see 921 Fifth Ave. Assoc. v. Eisenberg, 191 A.D.2d 396 [1993],appeal dismissed82 N.Y.2d 802 [1993] ). However, in light of the fact that tenant effected a cure by signing the renewal lease, albeit belatedly ( see 6 Greene St. Assocs. LLC v. Robbins, 256 A.D.2d 169 [1998] ), we permanently stay execution of the warrant of eviction on the condition stated above. Landlord's attempt to deny tenant a right to cure by injecting a nonprimary residence claim into this litigation was improper ( see 235 W. 71 St. LLC v. Chechak, 16 AD3d 242 [2005] ).