Hearing Required on Whether Landlord Accepted Late Payments

Landlord sued to evict tenant for chronic nonpayment of rent. The parties signed a settlement agreement in court in October 2005, giving landlord a judgment of possession. An eviction warrant was issued but delayed during a probation period. Tenant agreed to make installment payments through March 2006 of back rent owed, and to pay ongoing rent through April 2007 by the fifth day of the month. Landlord later sought execution of the eviction warrant, claiming that tenant had violated the agreement by paying her rent late. Tenant asked the court to stop the eviction. She had paid all the back rent. She acknowledged that for several months she paid her current rent at the end of the month instead of by the fifth. But this was because she had leg surgery, went on disability, and had to wait for disability checks to make her rent payments. She also claimed that landlord's agent had agreed that she could make these late payments. The court ruled against tenant without holding a fact-finding hearing, and she appealed. The appeals court ruled for tenant and reopened the case. The lower court must hold a hearing to take testimony on whether landlord permitted the late payments before ruling on whether the eviction should go forward.

6914 Ridge Boulevard LLC v. Dakhlaoui: NYLJ, 12/18/08, p. 44, col. 2 (App. T. 2 Dept.; Pesce, PJ, Rios, J, Weston Patterson, J dissents)