126 Bapaz, LLC v Alamo

[*1] 126 Bapaz, LLC v Alamo 2007 NY Slip Op 50427(U) [14 Misc 3d 145(A)] Decided on March 7, 2007 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 7, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., McCooe, Klein Heitler, JJ
570546/06.

126 Bapaz, LLC Petitioner-Appellant, -

against

George Alamo, Jr. and James Alamo, Respondents-Respondents.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Jean T Schneider, J.), dated September 7, 2006, which granted a motion by respondent George Alamo, Jr. to vacate a stipulation settling a holdover summary proceeding.

PER CURIAM

Order (Jean T. Schneider, J.), dated September 7, 2006, affirmed, without costs.

The record reveals the existence of a potentially meritorious succession defense on behalf of the first-named respondent, which should not be deemed forfeited by his uncounseled decision to consent to judgment. The trial court, which had charge of the proceeding since its inception, properly vacated the stipulation so that respondent, now represented by counsel, will have the opportunity to contest the holdover petition at trial. The court "possesses the discretionary power to relieve parties from the
consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it." (1420 Concourse Corp. v Cruz, 135 AD2d 371, 373 [1987], appeal dismissed 73 NY2d 868 [1989], citing Matter of Frutiger, 29 NY2d 143, 150 [1971].)
This constitutes the decision and order of the court.
Decision Date: March 7, 2007