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Zombeck v. Segesta

Civ Ct, NY County

April 11, 2013

LAWRENCE ZOMBECK, Petitioner-Landlord
v.
ROBERT SEGESTA 342 WEST END AVENUE APT 1A NEW YORK, NEW YORK 10023 Respondent-Tenant Index No. 52569/2013

Unpublished Opinion

GREEN & COHEN PC Attorneys for Petitioner

ROBERT SEGESTA Respondent Pro Se

DECISION& ORDER

HON. SABRINA B. KRAUS

BACKGROUND

This summary nonpayment proceeding was commenced by LAWRENCE ZOMBECK (Petitioner) and seeks to recover possession of 342 WEST END AVENUE APT 1A NEW YORK, NEW YORK 10023 (Subject Premises) based on allegations that ROBERT SEGESTA (Respondent) had failed to pay past due rent for the Subject Premises.

PROCEDURAL HISTORY

This proceeding was commenced by issuance of a three day notice dated December 20, 2012 seeking $ 4, 826.12 in rent arrears, at arate of $1425.26 per month plus fuel charges from September 2012 through December 2012. The petition is dated January 17, 2013.

The Respondent filed an answer on February 14, 2013, asserting improper service, that the rent sued for had been paid, and that repairs were necessary. The proceeding was initially returnable on February 25, 2013. On that date, the parties entered into a stipulation which provided the proceeding was discontinued. The stipulation read " LL accepts $1206.53 in ct, Resp is current on all rent through 2/28/13 accordingly discontinued."

On April 8, 2013, Petitioner moved for an order restoring the proceeding to the calendar and vacating the stipulation dated February 25, 2013. Respondent failed to appear on the return date, and the court reserved decision on the motion.

THE MOTION

Petitioner's motion seeks an order vacating the stipulation dated February 25, 2013 based on an alleged mutual mistake of fact. Petitioner's motion is supported by an affirmation of counsel and Petitioner's affidavit. Neither document asserts the exact amount Petitioner alleges was actually due on February 25, 2013, just that it was more then was recited in the stipulation. Petitioner's affidavit also asserts that $4, 826.12 is due through March 2013.

The affidavit refers to an annexed rent history, but the rental history is confusing and appears to be different parts of incomplete documents. The first page covers a period from April 2011 to April 2012. It states at the bottom that it is page 1 of 2, but no page 2 is annexed, instead the second page of exhibit B covers a period from June 2012 through December 2012 and states it is page 1 of 1, and is followed by a third page which also states it is page 1 of 1, and only covers ...


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