
    566 Beck Realty Corp., Appellant, v Joyce Ramirez, Respondent.
    Supreme Court, Appellate Term, First Department,
    October 27, 1976
    
      Allison, Kaufman & Greenberg (Abraham J. Yasgour of counsel), for appellant.
   Per Curiam.

Order entered June 10, 1976 (Herman, J.) modified by reversing so much thereof as denied landlord’s motion to vacate the stay under section 755 of the Real Property Actions and Proceedings Law and by granting the motion to vacate the stay and directing the Clerk of the Civil Court of the City of New York, County of Bronx, to pay the amount on deposit to landlord; as modified, affirmed without costs.

This nonpayment summary proceeding was stayed under section 755 of the Real Property Action and Proceedings Law on condition that tenant deposit with the clerk of the lower court the rent sought in the petition and deposit future rent as it accrued within five days after the first day of each month thereafter. Tenant deposited the amount in suit but failed to deposit the rent which accrued for the three months thereafter. Landlord thereupon moved to vacate the stay as provided in the stay order.

Given tenant’s default in depositing the future rent, it was an abuse of discretion to continue the stay. By failing to make the ordered deposits, tenant violated the stay order and the intent of the statute that the tenant shall not be entitled to the stay without paying his rent into court (Real Property Actions and Proceedings Law, § 755, subd 2).

Resort to the stay under section 755 is an admission that the rent was due (3 Rasch, Landlord and Tenant [2d ed], § 1415, p 247). With the vacation of the stay, absent a counterclaim, the money on deposit should be paid to the landlord (Real Property Actions and Proceedings Law, § 755, subd 3; Gutwein v Gomez, NYLJ, July 23, 1973, p 2, col 1 [App Term]). Since the amount on deposit substantially equals the rent in suit, landlord is not entitled to a final judgment (Real Property Actions and Proceedings Law, § 751, subd 1).

We note parenthetically that Special Term was without authority to forgive the undeposited rent, as the court indicated in its decision dictated into the record, and that, inasmuch as tenant has not surrendered possession, she is still liable for that rent.

Concur: Hughes, P. J., Gellinoff, and Riccobono, JJ.  