Tobias Corp. v. Jones

—In an action for ejectment, the defendant appeals from a judgment of the Supreme Court, Kings County (Shaw, J.), dated September 10, 1995, which is in favor of the plaintiff and against her, inter alia, awarding delivery of possession of the property to the plaintiff. Ordered that the judgment is affirmed, with costs. Contrary to the contentions of the appellant tenant, where she failed to tender the proper amount due for use and occupancy prior to the issuance of the warrant of eviction, the court acted properly and within its discretion in issuing the warrant of eviction (see, New York City Hous. Auth. v Torres, 61 AD2d 681; Zara Realty Holding Corp. v Espinal, 162 Misc 2d 242; Sutter Houses v Diaz, NYLJ, June 1, 1990, at 25, col 5; see, Kohl v Fusco, 164 Misc 2d 431; see also, J.A.R. Mgt. Corp. v Foster, 109 Misc 2d 693). Courts have held that the proffer of rent prior to the issuance of the warrant was not lawful tender where it was made, as here, for a sum less than what was due and was untimely (see, Regan v Tally Ho Trucking Co., 103 Misc 2d 269; see also, Iltit Assocs. v Sterner, 63 AD2d 600, 601; Lenox Manor v Gianni, 120 Misc 2d 202; Matter of Albany v White, 46 Misc 2d 915; Burgess Realty Corp. v Johnson, NYLJ, [603] Apr. 20, 1992, at 30, col 2). O’Brien, J. P., Thompson, Joy and Goldstein, JJ., concur.