1588 1600 AMS LLC v. GIL (2022)

Order (Clifton A. Nembhard, J.), entered on or about April 28, 2020, reversed, without costs, motion denied, answer reinstated, and the matter remanded to Civil Court for further proceedings.

We exercise our discretion to excuse the failure of respondent, the senior citizen son of the deceased rent controlled tenant, to make a timely court-ordered payment of $6,932.50. The amount due represented some two years of accrued use and occupancy which the Court directed to be paid within 11 days (former RPAPL 745[2][c]). Although respondent was unable to obtain government assistance within the 11-day period mandated by the court, he proffered the full lump sum due, through counsel, shortly thereafter. In light of petitioner-landlord's more than two year delay in moving for RPAPL 745 relief, the large sum required to be paid, respondent's successful efforts to obtain public assistance funding, as well as his potentially meritorious succession claim, we conclude that he should be afforded a further opportunity to pay the sum due (see Silverman v. D'Arco, 149 A.D.3d 527, 53 N.Y.S.3d 624 [2017]; see generally Matter of Strata Realty Corp. v. Pena, 166 A.D.3d 401, 86 N.Y.S.3d 74 [2018]; 2246 Holding Corp. v. Nolasco, 52 A.D.3d 377, 860 N.Y.S.2d 516 [2008]), and remand accordingly.

While the amendment to RPAPL 745 in the Housing Stability and Tenant Protection Act of 2019 (L 2019, ch 36, § 1, Part M) does not apply to this proceeding commenced in 2017 (L 2019, ch 36, § 1, Part M, § 29), we note that the legislature has since recognized a need for flexibility in dealing with rent deposits. The amended statute among other things, permits the court to consider the equities of the case, directs deposit into court of use and occupancy accruing only after the court's order (RPAPL 745[2][a]), eliminates the penalty of striking claims and defenses (RPAPL 745 [2][f]), and permits the court to extend the time for deposit for good cause shown (RPAPL 745[2][d][ii]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.