Appeals from orders of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), dated May 15, 2007 and August 17, 2007. The order dated May 15, 2007 granted a motion by tenant to be restored to possession, conditioned upon his payment of the rental arrears and landlord's legal and marshal fees. The order dated August 17, 2007, insofar as appealed from, upon, in effect, granting a motion by landlord for leave to reargue the prior motion, adhered to the original decision and denied landlord's alternative request to further condition tenant's restoration upon his payment of the costs of renovating the premises (18 Misc 3d 1104[A], 2007 NY Slip Op 52401[U] [2007]).

Appeal from order dated May 15, 2007 dismissed as said order was superseded by the order dated August 17, 2007.

Order dated August 17, 2007, insofar as appealed from, affirmed without costs.

In this nonpayment proceeding, the parties entered into a stipulation of settlement requiring tenant to pay $499.19 by May 3, 2007. Tenant failed to make the required payment on time and was evicted on May 11, 2007. In the afternoon of the day tenant was evicted, landlord commenced "renovations" to the apartment.

Thereafter, tenant moved to be restored to possession. By order dated May 15, 2007, the Civil Court granted tenant's motion, finding that tenant's default was due to the failure by the Department of Social Services (DSS) to timely release a check for the arrears and that, but for the DSS delay, tenant would not have been evicted. The court conditioned tenant's restoration upon payment of all arrears as well as $1,575 in legal and marshal fees, and noted that tenant would thereafter be placed on involuntary financial management. Landlord's appeal from the May 15, 2007 order is dismissed as said order was superseded by a subsequent order dated August 17, 2007. [*2]

Landlord moved for leave to reargue or, in the alternative, for an order conditioning tenant's restoration upon his payment of landlord's costs of renovating the premises. By order dated August 17, 2007, the court, in effect, granted landlord leave to reargue, and, upon reargument, adhered to its original decision, and denied landlord's request to condition tenant's restoration upon payment of the costs of renovating the premises (18 Misc 3d 1104[A], 2007 NY Slip Op 52401[U] [2007]). We affirm the order dated August 17, 2007.

Tenant's default on the stipulation was minimal and inadvertent, as it was due to DSS error, and was promptly cured, and restoration was conditioned on payment of all rental arrears and landlord's legal and marshal fees. In addition, tenant had been placed on financial management, thus helping to ensure future timely payment of rent. In these circumstances, the court did not improvidently exercise its discretion in excusing tenant's default under the stipulation and restoring him to possession (see e.g. Equity LLC v Ottley, 14 Misc 3d 126[A], 2006 NY Slip Op 52374[U] [App Term, 2d & 11th Jud Dists 2006]; BJB Realty Corp. v Holloway, 10 Misc 3d 133[A], 2005 NY Slip Op 52085[U] [App Term, 2d & 11th Jud Dists 2005]; 576 Realty Corp. v Sneed, 6 Misc 3d 127[A], 2004 NY Slip Op 51686[U] [App Term, 2d & 11th Jud Dists 2004]; Raridge Props. v Haner, NYLJ, Aug. 16, 1991 [App Term, 2d & 11th Jud Dists]). Given the circumstances, the court also did not abuse its discretion in refusing to condition tenant's restoration upon payment of landlord's alleged $20,400 "renovation" costs. We note that the court did not have the power to order a prospective 1/40th rent increase, as requested by landlord (Jones v Gianferante, 305 NY 135, 139 [1953] [a summary proceeding "cannot validly produce a declaratory judgment as to the rights of the parties as of times subsequent to its commencement"]; see Arbern Realty Co. v Clay Craft Planters Co., 188 Misc 2d 314 [App Term, 9th & 10th Jud Dists 2001] [a prospective rent increase is declaratory or injunctive in nature, and thus beyond the power of courts of limited jurisdiction]; see also World Realty Corp. v Consumer Sales, Inc., 9 Misc 3d 136[A], 2005 NY Slip Op 51696[U] [App Term, 9th & 10th Jud Dists 2005]).

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: November 21, 2008