Aryeh v. 61 East 86 Owners Corp.

—Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about August 12, 1997, which, in an action for wrongful eviction, denied plaintiffs’ motion for partial summary judgment, unanimously affirmed, with costs.

We agree with the motion court that issues of fact exist as to whether plaintiffs were in default of the stipulation that settled the nonpayment proceeding defendant cooperative brought against them in Civil Court. Plaintiffs argue there is no dispute that they tendered all of the money due under the stipulation as of July 31, 1991. However, defendants claim that while plaintiffs made the first payment of $2,750 due on June 1, 1991, they failed to pay current maintenance charges due on that date, that a portion of the $2,750 payment was therefore applied to the current maintenance, as permitted by the stipulation, and that plaintiffs were in default of the stipulation because they never made the payments in a timely fashion. Issues of fact also exist as to whether the default was cured before the five-day cure period expired. Concur — Milonas, J. P., Rosenberger, Nardelli, Tom and Saxe, JJ.