Tenant's Breach of Agreement to Pay Rent on Time Excused

April 7, 2012

LVT Number: #23994

Landlord sued to evict tenant for chronic nonpayment of rent. Landlord and tenant signed a probationary settlement agreement in court by which landlord could request a final judgment of possession and eviction warrant if tenant paid late in the future three or more times. Tenant agreed to pay rent by the 15th of the month. Later landlord asked for the judgment after tenant violated the agreement. The court ruled against landlord. Tenant admitted paying late twice. But the third payment was mailed five days before its due date.

Landlord sued to evict tenant for chronic nonpayment of rent. Landlord and tenant signed a probationary settlement agreement in court by which landlord could request a final judgment of possession and eviction warrant if tenant paid late in the future three or more times. Tenant agreed to pay rent by the 15th of the month. Later landlord asked for the judgment after tenant violated the agreement. The court ruled against landlord. Tenant admitted paying late twice. But the third payment was mailed five days before its due date. Civil Practice Law and Rules Section 2103(b)(2) called for five days to be added to a delivery date to allow for mailing. The fact that the mail took more than five days was an unusual and unforeseen error in the mail system, and tenant shouldn't be held responsible. Tenant acted diligently, substantially complied, and the rent was received only one day late.

GEM Properties LLC v. Robbins: Index No. 65310/2010, NYLJ No. 1202544728391 (Civ. Ct. Kings; 2/27/12; Scheckowitz, J)

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