Pursuant to CPLR § 5704(b), Petitioner appealed that portion of the order to
show requiring it to restore Respondent to possession (NYSCEF Doc. 32). The Appellate
Term declined to reverse the order.
On the return date of the motion the DSS checks had still not been delivered to
Petitioner. An attorney from DSS was in the courtroom, in connection with other
proceedings with extensive DSS delays in determining tenants' applications for
assistance for which the court had required DSS's appearance. DSS counsel was able to
discern that the checks were still in the possession of DSS. He reported that he made
arrangements for the checks to be delivered to the courthouse DSS office within a few
days, whereupon he would be notified of their delivery, pick them up, and have them
delivered to Petitioner.
DISCUSSION
As described by Justice Saxe in his concurrence in Matter of Lafayette Boynton Hsg.
Corp. v Pickett (135 AD3d 518, 523 [1st Dept 2016]), "the initial case law that
allowed already-evicted tenants to be restored to their tenancy applied a standard of
'appropriate circumstances,' while subsequent cases permit a tenant's restoration after
eviction for 'good cause shown,' which standard is satisfied by good faith and eventual
successful efforts by a long-term tenant to satisfy his or her rent obligation, despite
hardships. In addition, some recent cases suggest that on appeal the trial court's decision
must be given the substantial latitude of an abuse of discretion standard of review."
Justice Saxe also observed that "because the statutory standard of proof to vacate a
warrant of eviction before the warrant is executed is 'for good cause shown'
(RPAPL 749[3]), one might expect that a more exacting standard should be employed