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175 Eastern Parkway Associates v. Jean Paul Baptiste Also Known As Constant Jean Baptiste

April 26, 2011


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This opinion is uncorrected and will not be published in the printed Official Reports.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


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 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]). 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 ...

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