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Civil Court, City of New York.

NEW YORK CITY HOUSING AUTHORITY-RAVENSWOOD HOUSES, Petitioner-Landlord, v. Robin ODLUM, Respondent-Tenant.

L & T 12496/16

Decided: April 21, 2020

Attorneys for Petitioner: Alan H. Liskov, Esq., Kelly MacNeal, Esq., New York City Housing Authority Law Department, 90 Church Street, 11th Floor, New York, NY 10007 Attorneys for Selfhelp Community Services, Inc., Article 81 Guardian for Respondent, Jordi Fernandez, Esq., Jordi Fernandez Law, P.C., 420 Lexington Avenue, Suite 2920, New York, NY 10170

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the motion by Respondent's Article 81 guardian to vacate the parties' July 10, 2017 stipulation and to vacate the judgment and warrant:

Papers Numbered

Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1

Affirmation in Opposition & Exhibit Annexed 2

Affirmation in Reply & Exhibits Annexed 3

Upon the foregoing cited papers, the decision and order on Respondent's Article 81 guardian's motion to vacate the parties' July 10, 2017 stipulation and to vacate the judgment and warrant:


This nonpayment proceeding was settled on July 10, 2017 by stipulation executed by Petition and Respondent's then-guardian ad litem. The stipulation included a judgment in the amount of $9,911.40, representing all rent due through July 2017. Issuance of the warrant of eviction was stayed through August 25, 2017. The stipulation includes a provision stating that it is without prejudice to Respondent's right to seek a rent adjustment. Thereafter, in January 2018, an Article 81 guardian (Self Help Community Services) was appointed for Respondent by an Order of Lee A. Mayersohn, Justice of the Supreme Court of Queens County. The instant motion by Respondent's Article 81 guardian seeks to vacate the July 10, 2017 stipulation on the primary bases that Respondent did not authorize her then-guardian ad litem to enter into the stipulation and because she has meritorious defenses, including a right to a rent adjustment and breach of warranty of habitability. Respondent's Article 81 guardian also alleges that the judgment amount has been satisfied and should be vacated. Petitioner opposes the motion in its entirety and annexes a rent ledger dated January 3, 2020 to dispute the allegation that the judgment amount has been satisfied.

Without needing to specifically reach Respondent's guardian's arguments in support of vacating the July 10, 2017 stipulation, the Court exercises its discretion pursuant to RPAPL § 749(3) to vacate the judgment and warrant since the judgment amount has been paid in full. The breakdown annexed to Petitioner's opposition papers includes all payments since the date of the stipulation and prior thereto. Petitioner's counsel claims that only $5,901.60 was paid between the date of the judgment and the issuance of the warrant of eviction on May 2, 2019. However, the breakdown shows that a total of $11,951.40 was paid after July 10, 2017.1

The pre-HSTPA (Housing Stability and Tenant Protection Act) version of RPAPL § 749(3) applies to this proceeding, which was commenced prior to June 14, 2019. See Laws 2019, ch 36 at Part M, §§ 19, 29. Under the express language of the former RPAPL § 749(3), “[t]he issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant, but nothing contained herein shall deprive the court of the power to vacate such warrant for good cause shown prior to the execution thereof.” Full payment of a judgment amount, even after issuance of a warrant, has been held by the Appellate Terms of both the First and Second Departments to be a sufficient basis (when coupled with other compelling factors) to vacate a warrant of eviction under the statute. See e.g. Four Thirty Realty, LLC v. Lieberman, 20 Misc 3d 143(A), 867 N.Y.S.2d 374 (App. Term 1st Dep't 2008) (Vacatur of warrant affirmed where judgment amount paid in full by long-term rent stabilized tenant); Clark v. Williams, 149 Misc 2d 945, 574 N.Y.S.2d 436 (App. Term 2d Dep't 1991) (Lower court decision reversed and judgment and warrant vacated where the judgment amount was paid in full and tenant had a valid breach of warranty claim).

Here, Respondent is an incapacitated person who lives in public housing. She is a recipient of social security benefits, has had a guardian ad litem previously appointed in this proceeding, and currently has an Article 81 guardian. The motion by her Article 81 guardian details substantial efforts to readjust her rent based on a change in household composition and income, as well as conditions in need of repair since 2018. Finally, as stated above, the judgment has now been satisfied in full. The stipulation does not contain a current rent provision (indeed, the current rent provision on the preprinted stipulation is stricken). In these circumstances, notwithstanding the fact that a portion of the judgment amount was paid after issuance of the warrant of eviction (cf. Keita v. Ottman, 34 Misc 3d 135(A), 946 N.Y.S.2d 67 (App. Term 2d, 11th & 13th Jud. Dists. 2011)), Respondent's Article 81 guardian has established good cause for vacating the judgment and warrant of eviction pursuant to RPAPL § 749(3). See Clark, 149 Misc 2d at 946, 574 N.Y.S.2d at 436 (“[O]nce the tenant satisfied the underlying judgment, the jurisdiction of the court in this nonpayment proceeding was terminated and the warrant of eviction should have been vacated.”); Harvey 1390 LLC v. Bodenheim, 96 AD3d 664 (1st Dep't 2012) (“A determination as to whether good cause exists is entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented.”) (Internal citation omitted).

Accordingly, the motion by Respondent's Article 81 guardian is granted insofar as the judgment is deemed satisfied, the judgment and warrant are vacated, and the proceeding is dismissed, without prejudice to Petitioner's claims to rent that has accrued during the pendency of this proceeding. The orders to show cause dated September 25, 2019 (filed by Respondent's daughter, Ralonda Odlum) and September 26, 2019 (filed by Respondent's Article 81 guardian), seeking to stay execution of the warrant of eviction, shall be denied as moot.



1.   The amounts are broken down into the following categories: (A) $2,443.2, representing 12 payments of $203.6 between July 14, 2017 and June 11, 2018; (B) $3,458.40, representing 4 payments of $864.60 from January 4, 2019 through April 18, 2019; (C) $864.60 paid on May 22, 2019; (D) $2,592.00, representing 3 payments of $864.00 between June 10, 2019 and September 8, 2019; (E) $864.00, representing payments of $846.00 (on September 12, 2019) and $18.00 (on September 15, 2019); and (F) $1,729.20, representing 2 payments of $864.60 on November 6, 2019 and December 7, 2019.

Clinton J. Guthrie, J.

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Docket No: L & T 12496/16

Decided: April 21, 2020

Court: Civil Court, City of New York.

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