Civil Court of the City of New York, Bronx County
Appearing for Petitioner: Lazarus Karp & Kalamotousakis
LLP by: Ivelina Buyuklieva, Esq.
Appearing for Respondent: BOOM! Health Legal Services by: Eva
C. Thermos, J.
the foregoing cited papers, the Decision/Order is as follows:
commenced this summary nonpayment proceeding seeking to
recover possession of the subject apartment, originally
pleaded as governed by the Rent Stabilization Law. Respondent
appeared and interposed an answer initially unrepresented,
and on March 29, 2016, entered into a stipulation of
settlement granting Petitioner a judgment for rent arrears
and the issuance of the warrant of eviction, with a stay of
its execution through May 10, 2016 for payment of the
Respondent obtained counsel and moved by order to show cause,
returnable on June 9, 2016, seeking to vacate the stipulation
on grounds that it was improvidently entered into, because by
doing, so he unintentionally waived substantial defenses to
the proceeding without receiving any consideration.
presented a Division of Housing and Community Renewal
(hereinafter "DHCR"), apartment registration record
which indicated that the apartment was registered as exempt
from rent stabilization for several years, going back to
2012. The registration contradicted the specific allegations
in the Petition that the premises were properly registered as
required by the Rent Stabilization Law and Code constituting
grounds for a potential dismissal of the petition for failure
to comply with a condition precedent to maintaining a
nonpayment summary proceeding. Respondent also seeks to amend
his answer to include all available defenses.
cross moves for an order permitting amendment of the petition
to substitute the erroneous allegation of rent regulation
coverage with language that the premises were decontrolled
due to a high rent vacancy lease entered into in 2011.
by Petitioner's request to amend the Petition, Respondent
then cross- moved for an order permitting discovery on the
issue of the apartment's ostensible permanent exemption
from Rent Stabilization. After several adjournments, the
motions were fully submitted for consideration on January 18,
2017, and the Court reserved decision.
of settlement are highly favored by courts and will not be
readily cast aside, except upon a showing that the
stipulation was entered into improvidently or inadvisably by
an unrepresented party who was not aware of the existence of
fundamental or substantial defenses to the proceeding and the
parties can be restored to the status quo without significant
prejudice to the other side. See In Re Estate of
Frutiger, 29 N.Y.2d 143(1971): 1420 Concourse Corp.
v. Cruz, 135 A.D.2d 371 (1st Dep't, 1987); Berco
Realty LLC v. Thombiano, 45 Misc.3d 129 (A), (AT, 2014);
2701 Grand Ass'n. LLC v. Morel, 50 Misc.3d 139
(A)(AT1, 2016). Granting this branch of the motion is proper,
in light of Petitioner now seeking to amend the pleadings
which contain allegations affecting the regulatory status of
the apartment. Respondent should be permitted to defend
Petitioner's new allegation that the premises are not
covered by rent regulation.
parties seek to amend their pleadings. Petitioner seeks to
amend the allegation concerning the regulatory status of the
apartment to change the present statement that the premises
are regulated to that they are no longer regulated effective
2011 due to high rent vacancy, occurring prior to Respondent
taking possession. Respondent seeks to amend the answer,
interposed while unrepresented, to include the defense of
failure to properly register with DHCR, a potential
overcharge claim, and for legal fees pursuant to RPL 234.
of pleadings shall be freely granted absent unfair prejudice
or surprise to the opposing party. CPLR 3025 (b), See 36
Main Realty Corp. v. Wang Law Office, PLLC, 49 Misc. 3rd
51, (AT 2nd Dept., 11 & 13 Jud. Distr., 2015). If the
amendments sought are meritorious and not unduly prejudicial
the court has discretion to permit amendment of the pleading,
see Herrick v. Second Cuthouse Ltd.,64 N.Y.2d 692
(1984); 115 Macombs, LLC. v. Jackson, 50 Misc.3d
795, (Civ. Ct. 2015). It is axiomatic that courts favor that
all claims and defenses be fully asserted and litigated so
that a meritorious adjudication of ...