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Panels Clash on Pre- and Post-Eviction Remedies

By Jeffrey Turkel

The scenario is common enough: A landlord brings a proceeding against a long-term rent-regulated tenant, sometimes elderly or infirm, who has fallen behind in rent. The tenant struggles to obtain the money, often from slow-moving governmental or charitable sources. “Time of the essence” payment stipulations are entered into, and then violated. A judgment of possession is issued, and multiple stays are obtained. Finally, the tenant offers payment, sometimes pre-eviction, and sometimes post-eviction. What is a court to do?

As two recent cases prove, there is no clear answer. In Lafayette Boynton Hsg. Corp. v Pickett, 135 AD3d 518 (1st Dept 2016), a post-eviction case, the majority affirmed Appellate Term's order restoring the tenant to possession, with Justice David B. Saxe issuing a lengthy concurring opinion that called the current state of the law into question. In contrast, in the pre-eviction case of 191 St. Assoc. LLC v Cruz, 50 Misc3d 137(A) (App Term 1st Dept 2016), Appellate Term majority authorized a tenant's eviction, over a lengthy dissent by Justice Doris Ling-Cohan.

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