TenantNet Forum

Where tenants can seek help and help others



holdover stipulation

NYC Housing Court Practice/Procedures

Moderator: TenantNet

holdover stipulation

Postby falcon765 » Thu Nov 24, 2005 2:06 pm

I have a stipulation agreement, from a non-payment to a holdover, that states I need to vacate by Nov 30th, or be evicted and have to pay two months rent that was agreed to be forfeited by landlord if I move by that date. I found an apartment that is available on Dec 4th. Can I go to court and get a four day extension? Is this a "show cause' thing? (Not sure what that means.)
Any advice would be appreciated.
falcon765
 
Posts: 1
Joined: Thu Nov 24, 2005 2:01 am

Re: holdover stipulation

Postby Aubergine » Thu Nov 24, 2005 4:49 pm

The answer to your question is probably yes, you should move by order to show cause to further stay issuance or execution of the warrant of eviction, ideally supported by both an affidavit by you detailing the situation and a copy of your signed lease for the new apartment. You preferably don't want to go in with just your own word in support of your claimed need for an extension.

Incidentally, do you mean you stipulated to the conversion of a nonpayment proceeding to a holdover? In your case, you seem to have a possibly satisfactory resolution of the case, but tenants should be wary of this LL-lawyer tactic. It is discussed in Scherer, Residential Landlord-Tenant Law in New York, ch. 14:
§ 14:58. CONVERSION TO HOLDOVER; OPTION TO PAY AND SAVE TENANCY ELIMINATED

Pro se tenants are sometimes asked to agree to convert nonpayment proceedings to holdover proceedings, generally in exchange for waiver of past rent and/or other monetary consideration.

This gives the landlord a possessory judgment that can be executed regardless of whether the tenant is able to pay the rent that is due prior to the issuance of a warrant of eviction. In a nonpayment proceeding, the tenant can avoid eviction by paying the rent that is due any time up until the issuance of the warrant of eviction. RPAPL § 749(3). See Judgments, Warrants, and Stays of Eviction, § 15:6; Postjudgment Motions, § 17:39.

In a holdover proceeding, however, rent is not in issue, and the tenant thus cannot preserve the tenancy by paying rent. See Jurisdiction, Venue, and Forum in Summary Proceedings, § 7:33.

§ 14:59. -- COURTS RELUCTANT TO SANCTION PRACTICE

The courts have been reluctant to sanction this practice because it contravenes a significant right protected by the RPAPL. Conversions to holdover have been held to be inappropriate based on the failure to comply with the prerequisite notices that give the court jurisdiction over holdover proceedings. Beach Haven Apartments No. 4, Inc. v. Volf, 97 Misc. 2d 824, 412 N.Y.S.2d 566 (N.Y. City Civ. Ct. 1979).

Example The court had no jurisdiction where monthly tenancy was not terminated by the notice required under Real Property Law § 232-a. Stribula v. Wien, 107 Misc. 2d 114, 438 N.Y.S.2d 52 (App. Term 1980).

§ 14:60. ---- VACATUR OF STIPULATION

Stipulations converting nonpayment proceedings into holdover proceedings have also been vacated because they were improvidently entered into by the tenant. See, e.g., High v. Randall, NYLJ 1/8/80 11:4 (App. Term 2d Dep’t).

However, in another case it was held that the court had jurisdiction to enter a holdover judgment where conversion from nonpayment proceeding was done knowingly, intelligently, and for consideration. Pecenik v. Adam, 107 Misc. 2d 488, 435 N.Y.S.2d 256 (N.Y. City Civ. Ct. 1981). See also Carmine Limited v. Olariu, NYLJ 10/24/97 29:2 (App. Term 1st Dep’t).
Aubergine
 


Return to Housing Court - NYC

Who is online

Users browsing this forum: No registered users and 16 guests