SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 26, 2011
175 EASTERN PARKWAY ASSOCIATES,
JEAN PAUL BAPTISTE ALSO KNOWN AS CONSTANT JEAN BAPTISTE, JR.,
-AND- STEVEN H. SINDOS, "JOHN DOE" AND "JANE DOE",
Appeal from an order of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), dated November 18, 2008.
175 E. Parkway Assoc. v Baptiste
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2011
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order, insofar as appealed from, upon, in effect, granting tenant Jean Paul Baptiste's motion for leave to reargue his prior motion to vacate a warrant of eviction, adhered to the prior determination denying such vacatur.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this chronic-nonpayment holdover proceeding, the parties entered into an extensive two-attorney stipulation of settlement in September 2004, which provided that landlord would be awarded a final judgment of possession. In that stipulation, Jean Paul Baptiste (tenant) acknowledged the truth of the allegations as to his chronic nonpayment of rent, which included the fact that landlord had had to bring at least eight nonpayment proceedings against him since 1998. Tenant further agreed to a five-year probationary period during which each month's rent had to be paid by the fifth of each month. The stipulation also provided, in very clear terms, that no default would be considered de minimis and that, upon default, no further notice would be required and the warrant would execute upon service of a marshal's notice.
In August 2008, tenant was served with a marshal's notice, and he subsequently moved to vacate the warrant of eviction. In his affidavit in support of the motion, tenant asserted that he had fully complied with the stipulation of settlement, and he attached money order receipts purporting to show that he had timely paid the prior three months' rent. The Civil Court denied the motion, noting that, upon a close examination of the money order receipts submitted by tenant, it appeared that the dates upon which the money orders had been purchased had been altered or covered in some way. Tenant moved for leave to reargue his prior motion, and the Civil Court, in effect, granted leave to reargue but adhered to its prior determination. We affirm.
Settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by 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 ). By entering into a stipulation that was negotiated by his attorney and which contained a provision that no default would be considered de minimis, tenant expressly agreed to strict compliance with the stipulation and that no breach, no matter how trifling, would be excused. To forgive tenant's failure here would not only render this stipulation meaningless, it would undermine landlords' incentives to enter into stipulations.
Further, in his motion for leave to reargue, tenant conceded not only that he had been late twice with the rent, but also that he had deliberately misled the court by covering up the dates on the money orders submitted with his first motion in order to hide the fact that he had been late. In his first motion, tenant stated that he had "complied with all terms of the stipulation." However, in his reargument motion, he admitted that his money orders "were purchased late and sent late," and apologized "for any facts found in my prior affidavit that were inaccurate or misleading to the court," stating that "[s]ome dates were blanked out on tendered, money orders. This was because they were not purchased on the first day of the months in question but in fact purchased about ten days into the month."
As noted by the Civil Court, these defaults "went to the heart of the proceeding and settlement," in which tenant had admitted that he had a very long history of nonpayment of rent, and the court properly refused to excuse them (see M & B Lincoln Realty Corp. v Lubrun, 4 Misc 3d 129[A], 2004 NY Slip Op 50668[U] [App Term, 2d & 11th Jud Dists 2004]).
Contrary to tenant's assertions, there is no evidence that landlord's alleged acceptance of his late payments indicated any intent to excuse the defaults or to revive the tenancy (see e.g. Starrett City, Inc. v Smith, 25 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2009]). Instead, landlord indicates that, upon learning of tenant's defaults, it served a marshal's notice on tenant. Such behavior is entirely inconsistent with a "waiver" of tenant's defaults.
Finally, tenant's assertion on appeal that he was owed a "credit" is dehors the record and will not be considered (see Devellis v Lucci, 266 AD2d 180 ). In any event, the alleged credit was not enough to offset even one month's payment under the stipulation, much less two.
Tenant's remaining contentions are without merit. Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., and Weston, J., concur.
Steinhardt, J., dissents in a separate memorandum.
Steinhardt, J., dissents and votes to reverse the order, insofar as appealed from, and, upon reargument, grant tenant's motion to vacate the warrant of eviction in the following memorandum:
During the early autumn of 2004, tenant consented to a five-year probationary period, during which he would remit use and occupancy payments equivalent to the "rent" set forth in the then current renewal lease form, on or before the fifth of each month. The parties agreed to the entry of a final judgment of possession in favor of landlord, with a warrant to issue forthwith, execution thereof to be stayed to September 30, 2009. In addition, the agreement expressly stated that no "default hereunder is capable of being deemed de minimus [sic] and no default hereunder by respondent is capable of cure."
It is undisputed that tenant was late in both the July 2008 and August 2008 payments. A warrant of eviction was issued on August 13, 2008. The money order for July was purchased on or about July 8th and cashed on the 24th. Similarly, the August "rent" was paid by money order purchased on August 12th and negotiated approximately nine days later, after the issuance of the warrant. At no time did landlord return either check to tenant. Tenant has resided in the subject premises for more than 25 years.
It is well established that the acceptance of late payment of rent can constitute a waiver by the landlord of the right to enforce strictly a deadline for payment of rent (East 4th St. Garage v L.B. Mgt. Co., 172 AD2d 292 ; 61 E. 72nd St. Corp. v Zimberg, 161 AD2d 542 ). "When rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by landlord of the default" (Atkin's Waste Materials v May, 34 NY2d 422, 427 , citing Woollard v Schaffer Stores Co., 272 NY 304, 312  and Murray v Harway, 56 NY 337 ; Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 30 AD3d 1 ).
This court has held that the acceptance of rent for the period after the termination of the lease vitiates the notice of termination and the petition must be dismissed (Vendome v Tasoulis, NYLJ, Feb. 2, 1994, at 23, col 5 [App Term, 2d & 11th Jud Dists]; see also Greenbriar Apts. v Wishneff, NYLJ, July 8, 1994, at 31, col 3 [App Term, 2d & 11th Jud Dists]; 110-20 71st Rd. Apts., Inc. v Oberlander, NYLJ, May 6, 1998, at 33, col 2 [Civ Ct, Queens County]).
Moreover, "[s]tipulations of settlement are essentially contracts and will be construed in accordance with contract principles and the parties' intent" (Serna v Pergament Distribs., 182 AD2d 985, 986 ). "[S]tipulations of settlement are favored and in general will be enforced in accordance with their terms" (Everett D. Jennings Apts., L.P. v Jones, 4 Misc 3d 134[A], 2004 NY Slip Op 50773[U] [App Term, 2d & 11th Jud Dists 2004]; see Hallock v State of New York, 64 NY2d 224, 230 ). However, it is a well-settled rule that a stipulation's enforcement remains "subject to the supervision of the courts" (J & H Mgt. Corp. v W.W.R.S Automotive Inc., 7 Misc 3d 134[A], 2005 NY Slip Op 50742[U] [App Term, 2d & 11th Jud Dists 2005], citing Malvin v Schwartz, 65 AD2d 769 , affd 48 NY2d 693 ; see Ribner v Ribisi, 10 Misc 3d 144[A], 2006 NY Slip Op 50130[U] [App Term, 9th & 10th Jud Dists 2006]; F & T Mgt. & Parking Corp. v Flushing Plumbing Supply Co., Inc., 22 Misc 3d 1118A], 2009 NY Slip Op 50174[U] [Sup Ct, Queens County 2009]). A court may relieve a party from the consequences of enforcement where it would be unjust or inequitable or permit the other party to gain an unconscionable advantage (Bank of NY v Forlini, 220 AD2d 377 ; Ribner v Ribisi, 10 Misc 3d 144[A], 2006 NY Slip Op 50130[U]). In Bromley Co. LLC v Rachman-Coakley (24 Misc 3d 144[A], 2009 NY Slip Op 51787[U] [App Term, 1st Dept 2009]), the court refused to strictly enforce the possessory remedy in the stipulation resulting from the untimely payment of rent arrears, as it would be inequitable under those circumstances. In Ribner v Ribisi (10 Misc 3d 144[A], 2006 NY Slip Op 50130[U]) the court affirmed the lower court's finding that there had been substantial compliance with the terms of a stipulation where a post-dated check rendered the stipulated payment "late." Similarly, in Giffuni Bros. v Sasso (10 Misc 3d 132[A], 2005 NY Slip Op 52041[U], [App Term, 1st Dept 2005]), the court looked at the circumstances of the default and found that the default did not warrant the loss of possession, in the absence of prejudice to the landlord.
It is the opinion of the undersigned that landlord's acceptance of the July and August rent, after it became due on the fifth day of each month, constituted a waiver. The delay of several days was minor and minimal and does not, in this writer's opinion, constitute a breach of the agreement. Neither damage nor prejudice was sustained by landlord. To proceed with the eviction, resulting in a forfeiture of tenant's long-standing tenancy, would result in an unjust and inequitable outcome. I therefore vote to reverse the Civil Court's order, insofar as appealed from, and grant tenant's motion to vacate the warrant of eviction.
Decision Date: April 26, 2011
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