Tenant appellants are shareholders of a low-income Housing Development Fund Corporation cooperative located on West 121st Street, in Manhattan. Starting in December 2006 and for the next 13 months, tenants stopped paying their monthly maintenance charges of $410. This nonpayment summary proceeding followed, with tenants interposing a warrant of habitability counterclaim seeking a rent abatement. It appears that at the ensuing trial, tenants refused to stipulate to the admissibility of the most routine documents, unnecessarily extending the trial’s duration and increasing the amount of legal fees incurred by petitioner.
In its posttrial decision, Civil Court held that, pursuant to the terms of the governing proprietary lease, it was tenants who were responsible for the painting, plastering, plumbing and electrical work that they had insisted was necessary to ameliorate claimed conditions in their apartment, denied tenants any abatement and specifically found that “despite repeated requests” tenants had denied petitioner access to the apartment. Aside from the issues litigated in this proceeding, Civil Court referenced a separate action initiated by tenants against petitioner, based upon a claimed lead-related condition, which was ultimately dismissed on the merits by Supreme Court.
When all was said and done, a possessory judgment was entered against tenants, who were found to have owed almost $16,000 to petitioner — or, more accurately to their fellow shareholders and neighbors who had to make up the shortfall while tenants pursued dubious litigation against petitioner. Not having the funds to fully satisfy the final judgment, tenants entered into a stipulation with petitioner, so-ordered on September 24, 2008, which provided for a payment schedule for current maintenance and monthly payments to satisfy the judgment arrears. Tenants, represented by counsel, stipulated, inter alia, that “[a]s to payment dates time is of the essence.”
Tenants tendered the very first payment due under the stipulation over a week late, and shortchanged petitioner by about $8 to boot. In response, petitioner sought to execute on the war*49rant of eviction and accelerate tenants’ entire debt — remedies which were agreed to by tenants in the settlement stipulation. By order to show cause, tenants moved to stay execution of the warrant, relief which was denied by Civil Court, appropriately so, in my view. Tenants now appeal to this court, which issued a conditional stay pending the outcome of the appeal.
The majority euphemistically characterizes tenants’ untimely and deficient tender of the initial installment payment as a “lapse.” In proper context, it is just one more example of a mindset, abundantly clear in the record, that the rules apply to others, not tenants. And it was the type of conduct which petitioner sought to avoid when, after years of unnecessary litigation, it insisted that tenants agree to a “time of the essence” payment provision in the court ordered stipulation (see generally Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 [1996]).
In declining to accept the “de minimis” breach excuse offered by tenants — but embraced by the majority — Civil Court rightly concluded, on the then existing facts (including that tenants were required to seek help from Department of Social Services to make the first installment payment) that tenants were unlikely to comply with the remaining settlement terms, mercifully sparing petitioner (and the cooperators who pay the bills) the specter of more court appearances, legal fees and aggravation.
As a postscript, the majority notes that tenants appear to have lived up to their settlement obligations during the stay issued by this court (information not known to Civil Court unless possessed of the powers of a soothsayer), perhaps suggesting that tenants have now seen the light. I decline to join in the “pat on the back.” I suspect that tenants newfound recognition that they must fulfill their obligations under the stipulation has less to do with a spirit of cooperation than with the realization that someone had the temerity to finally say: “Enough is enough.”
As the Court of Appeals aptly stated in Matter of Levandusky v One Fifth Ave. Apt. Corp. (75 NY2d 530, 537 [1990], quoting Sterling Vil. Condominium, Inc. v Breitenbach, 251 So 2d 685, 688 n 6 [Fla Dist Ct App 1971]): “Every man may justly consider his home his castle and himself the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others.”
*50I respectfully dissent, and vote to affirm Civil Court’s discretionary ruling to deny tenant’s application to stay execution of the warrant of eviction.
Heitler and Shulman, JJ., concur; McKeon, EJ., dissents in a separate opinion.