Appeal from an order of the Civil Court of the City of New York, Kings County (John H. Stanley, J.), dated July 7, 2009.
New York City Hous. Auth. v Malik
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 26, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ
The order denied occupant's motion to vacate a final judgment of possession or, in the alternative, to vacate stipulations of settlement, and for leave to interpose an answer.
ORDERED that the order is affirmed, without costs.
After determining at an administrative hearing that occupant was not eligible to reside in the premises, which determination was upheld after a CPLR article 78 challenge, landlord New York City Housing Authority commenced this licensee proceeding against occupant in December 2001. In October 2002, the parties entered into a two-attorney stipulation of settlement providing, among other things, that landlord would be awarded a final judgment of possession, with execution of the warrant to be stayed until December 31, 2003. Thereafter, several years elapsed without occupant having been evicted. On March 31, 2008, the parties entered into a second stipulation of settlement, which provided, among other things, that the final judgment of possession and warrant would remain in full force and effect. Both stipulations were conditioned upon occupant's paying use and occupancy. Occupant subsequently moved to vacate the final judgment of possession or, in the alternative, the stipulations of settlement, and for leave to serve and file an answer. By order dated July 7, 2004, the Civil Court denied his motion.
Occupant has offered no valid basis, such as fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see e.g. Hallock v State of New York, 64 NY2d 224 ; Matter of Frutiger, 29 NY2d 143 ), to invalidate either stipulation.
Occupant's claim that landlord's acceptance of use and occupancy over the course of the years created a right for him to remain in this publicly subsidized apartment is meritless. First, as the stipulations in this case expressly conditioned any stays upon occupant's payment of use and occupancy, landlord's acceptance thereof did not evince an intent to accept occupant as a tenant. Indeed, a 2004 order in this proceeding expressly stated that the acceptance of use and occupancy would not confer any additional rights on occupant. In any event, as landlord correctly argues, equitable estoppel cannot be invoked to create a tenancy where, as here, to do so would violate a statutorily declared public mandate (see Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776 ; Lindsay Park Hous. Corp. v Hines, 27 Misc 3d 140[A], 2010 NY Slip Op 50988[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Starrett City, Inc. v Smith, 25 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2009]).
As occupant has shown no right to occupy the apartment, or to invalidate the stipulations or the final judgment entered pursuant thereto, the order is affirmed.
Pesce, P.J., Weston and Golia, ...