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Josephine Geraci, Respondent v. Michael Jankowitz

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


July 13, 2012

JOSEPHINE GERACI, RESPONDENT, --
v.
MICHAEL JANKOWITZ, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Laurie Lynne Lau, J.), entered July 28, 2011.

Geraci v Jankowitz

Decided on July 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The order denied tenant's motion to vacate a stipulation of settlement in a holdover summary proceeding.

ORDERED that the order is affirmed, without costs.

During the course of a non-jury trial held on November 4, 2010 in this nuisance holdover proceeding, tenant requested that the matter be settled and, with the advice of counsel, entered into a "so-ordered" stipulation of settlement wherein he agreed to, among other things, voluntarily vacate the premises and surrender the keys to landlord no later than February 28, 2011, thereby terminating his rent-stabilized tenancy of 28 years. Tenant thereafter moved to vacate the stipulation of settlement, arguing, among other things, that the seven-day notice to terminate was defective. The Civil Court denied the motion.

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]). Tenant has not set forth any such basis to invalidate the stipulation entered into in this proceeding. We note that tenant's claim concerning alleged defects in the seven-day notice of termination was waived by virtue of the stipulation of settlement (see 1781 Riverside LLC v Chinchu Song, 35 Misc 3d 137[A], 2012 NY Slip Op 50830[U] [App Term, 1st Dept 2012]; 2380-86 Grand Ave Assoc., LLC v Ortega, 20 Misc 3d 135[A], 2008 NY Slip Op 51511[U] [App Term, 1st Dept 2008]; see also Seeram v Kearse, 2 Misc 3d 135[A], 2004 NY Slip Op 50213[U] [App Term, 2d & 11th Jud Dists 2004]). Thus, the Civil Court properly denied tenant's motion to vacate the stipulation of settlement.

We have reviewed tenant's remaining contention and find that it lacks merit.

Accordingly, the order denying tenant's motion to vacate the stipulation of settlement is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: July 13, 2012

20120713

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