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2638 Tenants Corp. v. Robert Pabst 26 East 38th Street

Civil Court of the City of New York County

April 4, 2013

2638 TENANTS CORPORATION, Petitioner-Proprietary Lessor
ROBERT PABST 26 East 38th Street, APT 3R New York, NEW YORK 10016 Respondent-Proprietary Lessee and JEISOHN FIALA, Respondent-Undertenant Index No. L&T 76827/2012

Unpublished Opinion

Attorneys for Petitioner By: YORAM SILAGY, Esq.

ROBERT PABST Respondent Pro Se.




This summary holdover proceeding was commenced by 2638 TENANTS CORPORATION (Petitioner) and sought to recover possession of Apartment 3R at 26 East 38th Street, New York, NEW YORK 10016 (Subject Premises) based on the allegation that ROBERT PABST (Respondent) the proprietary lessee for the Subject Premises had failed to pay rent due and had sublet the premises without permission.


Petitioner issued a notice of default dated June 1, 2012 and a notice of termination in July 2012. The petition issued on August 10, 2012, and the proceeding was originally returnable on August 30, 2012.

Respondent never filed an answer or appeared in court because Respondent was incarcerated. On or about September 13, 2010, Respondent was sentenced to three years in prison and one year of supervised release for running a business which aided and assisted in the preparation of fraudulent tax returns.

On the initial court date a stipulation was submitted to the court. The stipulation was executed by Jeisohn Fiala (Undertenant) who was residing in the Subject Premises at the time the proceeding was commenced. Undertenant signed on behalf of himself and on behalf of Respondent as Respondent's "attorney in fact." No power of attorney is annexed to any of the stipulations or in the court file, however a power of attorney is annexed to Petitioner's moving papers.

Pursuant to the initial stipulation, checks totaling $8, 479.08 were submitted towards arrears and Undertenant agreed to pay maintenance plus a 10% sublet fee by the first of each month for the duration of the proceeding. The proceeding was adjourned to October 5, 2012. On October 5, 2012, Undertenant and Petitioner stipulated to set the proceeding down for a trial on November 21, 2012. On said date the court (Stanley, J.) so-ordered a stipulation of settlement, which Undertenant signed on behalf of himself and Respondent as attorney in fact. Pursuant to said stipulation, Undertenant asserted he had vacated the Subject Premises as of October 2012 and that the sublet had been cured. It was additionally agreed that all maintenance had been paid as of the date of the stipulation. Undertenant agreed as Respondent's attorney in fact that Respondent would pay $8500 in attorneys' fees pursuant to a payment schedule that ran through July 2013. A money judgment was entered against Respondent for $8500 for legal fees and a judgment of possession was entered. Issuance of the warrant was stayed provided the payments were made. In the event of a default, Petitioner reserved the right to an additional $1500 in attorneys' fees as well as additional fees incurred as a result of the default.

On January 24, 2013, Petitioner filed an affidavit of non-compliance and sought issuance of the warrant. On February 26, 2013, Petitioner's application for a warrant was rejected by the clerk, because the affidavit of non-compliance did not have an affidavit of service annexed to it.

On March 26, 2013, Respondent, who had been released from prison, appeared in this proceeding for the first time and moved to vacate or amend the stipulation. Respondent asserts in his affidavit that he could not make the payments while incarcerated, because he was not advised to do so by undertenant, and that since his release he had attempted to make three payments which Petitioner had rejected.

Respondent asserts he can not meet the terms of the payment agreement and that Undertenant acted beyond the scope of his authority by entering into said agreement. Respondent seeks to vacate the November 21, 2012 stipulation. Petitioner cross-moves for an order enforcing said stipulation.

The motions are consolidated for disposition herein.


As this court has previously held, a tenant sued in a summary proceeding may either appear in person or through an attorney (Parkchester Preservation Company v Feldeine, 31 Misc.3d 859). There is no third option. Pursuant to § 478 of the judiciary law it is unlawful for a person who asserts he is an attorney in fact to represent another in a proceeding. This constitutes the unlawful practice of law without a license. The Appellate Term has specifically held that a power of attorney does not give the non-attorney authority to appear in court on behalf of his principal (91 East Main Street Realty Corp v Angelic Creations by Lucia 24 Misc.3d 25; Stokes v Village of Wurtsboro, 123 Misc.2d 694).

Based on the foregoing any stipulations entered by the Undertenant in this proceeding are only valid as against the Undertenant. The stipulations are null void as to Respondent and must be vacated. The money judgment and judgment of possession entered against Respondent pursuant to said stipulation are also vacated.

Moreover, the court notes that the underlying pleadings assert a claim for termination of tenancy based on failure to pay maintenance as a conditional limitation, which is not permitted under New York law (See e.g. Semans Family Limited Partnership v Kennedy, 177 Misc.2d 345; 520 East 86th Street Inc v Leventritt 127 Misc.2d 566).

The only remaining claim therefore would be Petitioner's allegation of an illegal sublet. Whether or not the sublet was unauthorized, it has undisputedly been cured, therefore, in no event would Petitioner be entitled to issuance of warrant in this holdover proceeding. However, Petitioner is entitled to a trial on the issue of the unlawful sublet.

All prior stipulations in this proceeding are vacated as against Respondent. The matter is set for trial on Petitioner's sublet claim. If Petitioner establishes a right at trial to a judgment of possession, then Petitioner may move for all reasonable attorneys' fees incurred in this proceeding, pursuant to the proprietary lease.

The trial shall take place on April 18, 2013 at 9:30 am. Parties are to appear in Part C room 844 that morning to be transferred to the expediter's part for assignment to trial.

This constitutes the decision and order of this Court.

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