seeking a temporary stay of the warrant pending the determination of her motion for an order
vacating the warrant of eviction and the judgment in favor of the Landlord pursuant to RPAPL
§749 (3) and CPLR 5015 (a) and dismissing the petition upon the grounds that: the petition
splits the cause of [*2]action by seeking payment of legal fees
previously awarded to Landlord; the rent was tendered to Landlord which refused it; as a section
8 tenant, she cannot be evicted for failure to pay late fees; Landlord did not demand the rent
before the petition was filed; the petition is defective in that it does not state the correct amount
of rent or the months for which rent is owed and she did not owe Landlord any rent.
The motion was returnable on February 4, 2010. The parties and their counsel
appeared and the motion was orally argued. The motion was granted to the extent of vacating the
judgment and warrant of eviction as the court found Tenant had demonstrated a reasonable
excuse for failing to appear on the return date of the petition and had demonstrated a meritorious
defense to the petition. A bench trial was held at that time. After considering the sworn
testimony of the parties and the documents admitted into evidence, the Court makes the
following findings of fact and conclusions of law:
FACTS
Landlord is the owner of the premises located at 43 Claremont Gardens, Ossining,
New York (the "premises"). Tenant lease the premises pursuant to a written lease agreement
commencing September 1, 2009 and ending August 31, 2010 (the "lease") for a monthly rent of
$1799.00. (Pet. "5").[FN1]
Tenant received a monthly subsidy of $549.00 from the Section 8 Tenant Based Assistance
Housing Choice Voucher Program [FN2], and her share of the rent was $1257.00. (Pet.