[752 NYS2d 781]

#### Lafrance Leasing L.P., Appellant, v Nancy D. Shepherd, Respondent.

Supreme Court, Appellate Term, Second Department,

July 18, 2002

*666APPEARANCES OF COUNSEL

*Pennisi, Daniels & Norelli, L.L.P.,*Rego Park *(Denise M. May*of counsel), for appellant. No appearance for respondent.

OPINION OF THE COURT

Memorandum.

Order modified by providing that the branch of landlord’s motion which sought restoration of the proceeding to the trial calendar is granted and the branch of the motion which sought to amend the petition to include all unpaid rent which accrued prior to restoration is denied without prejudice to renewal in the court below; as so modified, affirmed without costs.

Contrary to the opinion of the court below, the stipulation of settlement does not contain an express or implied condition that landlord was to complete the specified repairs before it could move to have the proceeding restored to the trial calendar upon tenant’s default in making the required payments. As a result, landlord is not required to allege in its moving papers that the repairs were completed *(see, 2160-2164 Caton v Epps,*NYLJ, May 6, 1998, at 31, col 4 [App Term, 2d & 11th Jud Dists]). Since the affidavit in support of landlord’s motion sufficiently demonstrated tenant’s default in making payments, that branch of landlord’s motion should be granted insofar as it sought restoration *(see, 2160-2164 Caton v Epps, supra).*Notwithstanding the fact that landlord’s motion was unopposed, insofar as it sought a final judgment and warrant of eviction, landlord is not entitled to such relief. As landlord based its claim for such relief solely upon a breach of the stipulation which, by its terms, only authorizes restoration of the proceeding to the trial calendar and does not authorize entry of a final judgment, tenant’s default only constituted a concession that she breached the stipulation.

Patterson, J.,

dissents, in part, and votes to modify the order and grant landlord’s motion to the extent of restoring the proceeding to the calendar, entering final judgment in the sum of $2,225.25 and authorizing the issuance of a warrant of eviction in the following memorandum: While I agree with the majority’s holding that, given the terms of the stipulation of settlement, the branch of landlord’s motion which sought to restore the proceeding to the calendar should have been granted inasmuch as landlord was not obligated to allege in its moving papers that the repairs were completed *(see, 2160-2164*
      *667
      *Caton v Epps,*NYLJ, May 6, 1998, at 31, col 4 [App Term, 2d & 11th Jud Dists]), I further believe that the branches of landlord’s motion which sought a final judgment and warrant of eviction should have been granted.

After tenant moved to vacate the default judgment, she executed a stipulation whereby she admitted that the arrears, which included the rent for August 2000, totaled $2,222.25. Tenant agreed to satisfy the arrears by making four payments, the first of which was to be made on August 9, 2000. Tenant failed to make any payments. In response to landlord’s motion seeking, inter alia, restoration, a final judgment and a warrant of eviction, tenant did not submit opposition papers or appear in court to oppose the motion. Having conceded the amount owed under the stipulation and having failed to make any payments, I believe tenant’s failure to oppose landlord’s motion was a concession that she had no defense and landlord was entitled to such relief.

Aronin, J.P., and Golia, J., concur; Patterson, J., dissents, in part, in a separate memorandum.