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LLC v. Roman

Civil Court of the City of New York, Bronx County

February 24, 2017

205 Assoc, LLC, Petitioner,
James Roman, Respondent.

          Appearing for Petitioner: Lazarus Karp & Kalamotousakis LLP by: Ivelina Buyuklieva, Esq.

          Appearing for Respondent: BOOM! Health Legal Services by: Eva Horowitz, Esq.

          Kimon C. Thermos, J.

         Upon the foregoing cited papers, the Decision/Order is as follows:

         Petitioner 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 arrears.

         Subsequently, 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.

         Respondent 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.

         Petitioner 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.

         Prompted 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.


         Stipulations 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.


         Both 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.

         Amendment 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 ...

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