Appeal by tenant from an order of the Civil Court, Kings County (B. Scheckowitz, J.), dated September 11, 2003, denying her motion to be restored to possession.

Order unanimously reversed without costs and matter remanded for a determination de novo in accordance with the following memorandum.

In this nonpayment proceeding, the parties entered into a so-ordered stipulation on August 12, 2003 which provided, inter alia, that execution of the warrant would be stayed until August 31, 2003 for payment of $2,020.52; that tenant pro se had paid
$732 of the $2,020.52 in court that day, leaving a balance due of $1,288.52; and that
the Department of Social Services (DSS) would pay the balance due by August 31, 2003. The stipulation reiterated that the DSS liaison, who was in court, had approved tenant for payment of the arrears.

DSS failed to timely make payment, and tenant was evicted on or about September 3, 2003. She moved thereafter to be restored. In denying her motion, the Housing Court stated that DSS had failed to make the payment; that tenant now owed an additional $1,125 in marshal fees and moving costs; that a (different) DSS liaison had told the court that she would not approve payment of the new amount owed unless tenant paid the September 2003 rent; and that tenant [*2](who had been laid off from her job and was receiving unemployment benefits) could not pay the September 2003 rent at that time. On appeal, tenant states, inter alia, that the building manager who evicted her told her that he was not informed that DSS had agreed to pay the rent by August 31, 2003, although tenant had made sure that a copy of the court order was put in her file.

In our view, tenant's motion to be restored should have been granted. The stipulation expressly provided that DSS, not tenant, would pay the balance owed by August 31, 2003, and the fault for DSS's failure to make the payment by that date cannot be laid at tenant's door. Since landlord, which is a City agency, or at least its attorney, knew that another City agency had agreed to pay the outstanding rent, landlord should not have evicted tenant (see McQueen v Grinker, 158 AD2d 355, 360 [1990] [in circumstances where "the rent check merely represents a transfer payment from one public agency to another (both of which are intended to assist the public assistance recipient), there is no need to subject the innocent tenant to eviction because the administrative bureaucracies are unable to reconcile their accounts"]).

However, since much time has now elapsed since the eviction, it is likely that the apartment has been re-rented to another equally-deserving tenant. In these circumstances, this court cannot restore tenant to her apartment without the joinder of the new tenant. Moreover, even if the new tenant were joined in the proceeding, it might be inappropriate to remove that tenant in order to restore the instant tenant. The matter is therefore remanded for further development of the facts.

If, upon remand, the Housing Court shall find that there is a new tenant in possession and, upon joinder of such new tenant, that it is inappropriate to remove the new tenant, the court shall direct landlord, upon appropriate terms, to restore tenant to another suitable apartment if, or as soon as, one is available. While it has been held by one lower court that a private landlord cannot, as part of a grant of restitution pursuant to CPLR 5015 (d) and CPLR 5523, be required to restore a tenant to a comparable apartment when the tenant's apartment is no longer available (D.U. Fourth Realty Co. v Meredith, 119 Misc 2d 423 [1983]; but cf. Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [2] [an owner may not bring an owner-use proceeding against a senior citizen or disabled tenant unless he first offers that tenant "an equivalent or superior housing accommodation"]), we need not now decide the correctness of that proposition since we are dealing here with a public-housing tenant. It is our view that, at least in the case of public-housing tenants, the remedy of restitution to a comparable apartment should be available. We note that CPLR 5523 provides for restitution not only of property lost but also of "rights" lost pursuant to a judgment. Public housing tenants have a "property interest" in their tenancies, a right to continued occupancy in public housing, which extends beyond their leases and beyond their particular apartments (Lopez v Henry
Phipps Plaza South, 498 F2d 937, 943 [2d Cir 1974]; Joy v Daniels, 479 F2d 1236 [4th Cir 1973]; see Vinson v Greenburgh Hous. Auth., 29 AD2d 338, 340-341 [1968]). Requiring [*3]landlord to place tenant in a comparable unit if, or as soon as, one is available is an appropriate means of restoring to tenant her right to continued occupancy in public housing, which right was denied to her as a result of the eviction.
Decision Date: June 30, 2004