361 West 121st Housing Dev. Fund Corp. v. Frazier

OPINION OF THE COURT

Per Curiam.

Order dated October 23, 2008, reversed, without costs, and tenants’ motion granted to the extent of staying execution of the warrant.

After tendering the full amount ($9,384.09) of the maintenance arrears found to have been due landlord upon the trial of the underlying nonpayment summary proceeding, tenants entered into a so-ordered stipulation consenting to the reentry of a final judgment, with execution of the warrant stayed on specified conditions. The stipulation required tenants to pay landlord’s counsel fees (denominated as additional rent in the governing proprietary lease agreement) of $13,250 in 16 monthly installments due the first day of each month, as well as accruing maintenance as it became due, with time of the essence. Tenants’ initial October 2008 installment payment for attorney’s fees, apparently processed via tenants’ bank’s on-line banking system, was $8.13 short and was not transferred to landlord’s bank account until after landlord’s issuance of a default notice on October 6.

In these circumstances, and in the absence of any serious claim that tenants materially breached the base rent requirements set forth in the stipulation, tenants’ lapse in connection with the stipulation’s attorney’s fee component should be excused pursuant to the court’s supervisory power over enforcement of so-ordered stipulations (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]). Particularly in housing matters where a forfeiture of shelter is implicated, a default of this nature should be “measured against the harsh result[s] which would obtain upon literal enforcement of the default provision in the stipulation” (Bank of N.Y. v Forlini, 220 AD2d 377, 378 [1995]; see also 2246 Holding Corp. v Nolasco, 52 AD3d 377 [2008]). We note that, so far as shown, tenants have complied with their payment obligations during the period of the stay granted by this court.