Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered March 5, 2013. The order denied a motion by Tamara Waldron and Enrique N. Riley be to restored to possession in a licensee summary proceeding.

ORDERED that the order is affirmed, without costs.

Landlord commenced this licensee summary proceeding (RPAPL 713 [7]) alleging that the rent-controlled tenant had died and that Tamara Waldron and Enrique N. Riley (appellants) were licensees whose license had expired. Appellants defended on the ground that they have succession rights. On October 15, 2012, the parties executed a stipulation in which it was agreed, among other things, that Enrique N. Riley would be given a rent-stabilized vacancy lease with a preferential rent of $700, and that landlord would be awarded a final judgment of possession and the sum of $10,214.84, with execution of the warrant stayed until November 30, 2012 for payment. A final judgment was entered pursuant to the stipulation, and a warrant issued. No motion was made to vacate the stipulation. On December 12, 2012, appellants moved to stay the execution of the warrant, asserting that Riley's application for a one-shot deal had been delayed by Hurricane Sandy and that he had made partial payments. Landlord opposed the motion, noting that $8,023.37 was still owed.

By order dated December 20, 2012, the Civil Court stayed the execution of the warrant to January 10, 2013 for payment of January 2013 rent, and to January 25, 2013 for payment of the arrears balance. The order provided that "upon default a warrant may be executed after re-service of a marshal notice by first class mail."

Appellants were evicted on February 22, 2013 and moved to be restored to possession. In support of the motion, Riley asserted, among other things, that he had not been served with a marshal's notice. Landlord opposed the motion, arguing that tenant owed $9,423.37 plus legal fees and that the failure to serve a marshal's notice was not a proper basis to restore appellants to possession (citing Presidential Mgt. Co. v Farley, 78 Misc 2d 610 [App Term, 2d & 11th Jud Dists 1974]). By order dated March 5, 2013, the Civil Court denied appellants' motion, noting that appellants did not dispute that they had defaulted under the stipulation, and that their remedy, if a marshal's notice had not been served, was against the marshal. Appellants challenge this ruling on appeal, distinguishing the Presidential Mgt. Co. line of cases on the ground that here there was a court order requiring the service of a marshal's notice and that landlord violated the court order.

We affirm. While there was a violation of the Civil Court's order requiring re-service of a marshal's notice, appellants made no application to punish for contempt. Since appellants were in default under the stipulation and the Civil Court's December 20, 2012 order, and did not show that they had the funds available to pay the arrears, and since, under the circumstances, restoration would have been futile, as appellants could be immediately re-evicted (Soukouna v 365 Canal Corp., 48 AD3d 359 [2008]), the Civil Court did not improvidently exercise its discretion in denying their motion to be restored (see Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; 368 Chauncey Ave. Trust v Whitaker, 28 Misc 3d 130[A], 2010 NY Slip Op 51254[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We pass on no other issue.

Pesce, P.J., Aliotta and Solomon, JJ., concur.