SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
December 23, 2011
BUSHWICK PROPERTIES, LLC,
JEANETTE WRIGHT, APPELLANT,
"JOHN DOE" AND "JANE DOE",
Appeal from an order of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.), entered September 16, 2010.
Bushwick Props., LLC v Wright
Decided on December 23, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order denied tenant's motion to stay the execution of a warrant.
ORDERED that the order is reversed, without costs, and tenant's motion to stay the execution of the warrant is granted to the extent of staying the execution of the warrant for 60 days from the date of this decision and order to permit payment of all outstanding arrears.
In this chronic-nonpayment holdover proceeding, the parties entered into a so-ordered stipulation of settlement whereby tenant agreed to, among other things, pay a specified sum. Upon breach of the stipulation, landlord was entitled to have a final judgment entered. Subsequently, landlord was awarded a final judgment of possession and the monetary sum of $6,256.30. Thereafter, the parties entered into a second so-ordered stipulation, dated May 21, 2010, wherein landlord agreed to extend the time for tenant to pay post-judgment arrears to June 30, 2010 and to give tenant an additional 20 days to cure and pay the judgment amount of $6,256.30. While it is undisputed that tenant was unable to comply with this payment schedule, the record demonstrates that, following the execution of the stipulation, tenant applied to several organizations for the arrears and, albeit belatedly, received a commitment letter for the full amount of the arrears. In view of all the circumstances, including tenant's diligence in seeking assistance during the time period at issue, the long-term nature of the tenancy and the particular terms of the stipulation, we reverse the Civil Court's order denying tenant's motion to stay the execution of the warrant, and grant the motion to the extent noted above (see 2246 Holding Corp. v Nolasco, 52 AD3d 377 ).
Pesce, P.J., and Steinhardt, J., concur.
Weston, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT PESCE, P.J., WESTON and STEINHARDT, JJ. BUSHWICK PROPERTIES, LLC, Respondent, -against- DECIDED JEANETTE WRIGHT, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.
NO. 2010-2543 K C
Weston, J., dissents and votes to affirm the order in the following memorandum:
In my view, the Civil Court acted well within its discretion in refusing to excuse tenant's default in making payment pursuant to the terms of a second so-ordered stipulation settling this chronic-nonpayment holdover proceeding (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]). Accordingly, I respectfully dissent and vote to affirm.
It is well established that stipulations of settlement "are favored by the courts and are not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230 ). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (id.).
Here, tenant offered no valid excuse for her default. After facing five nonpayment proceedings, tenant, who was represented by counsel, negotiated two binding stipulations of settlement in exchange for repeated stays of eviction. Under the first so-ordered stipulation, tenant agreed to pay her arrears by a date certain and would be given a 12-month probationary period for paying her rent, under which she would be entitled to three defaults. Despite the favorable terms of the stipulation, tenant failed to honor it. Nevertheless, tenant negotiated a second so-ordered stipulation, wherein landlord agreed to extend the time for tenant to cure and pay arrears. Tenant, again, failed to comply.
Although the majority excuses tenant's default by citing to a belated commitment letter for the full amount of the arrears, tenant's repeated failure to honor the terms of both stipulations evinces a complete disregard of their terms. A stipulation is a contract, which cannot be undone absent fraud, collusion, mistake or accident (id.). To set aside a stipulation on any other basis, as the majority has done here, would render stipulations of settlement meaningless and effectively discourage landlords from ever entering into them. Since tenant failed to abide by the terms of the stipulation, and there is no basis in law to excuse her failure, the Civil Court properly denied tenant's motion to stay the execution of the warrant of eviction (see Chelsea 19 Assoc. v James, 67 AD3d 601 ).
Accordingly, I vote to affirm the order denying tenant's motion to stay the execution of the warrant of eviction.
Decision Date: December 23, 2011
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