191 St. Assoc. LLC v Cruz

[*1] 191 St. Assoc. LLC v Cruz 2016 NY Slip Op 50116(U) Decided on February 5, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570210/14

191 Street Associates LLC, Petitioner-Landlord-Appellant, -

against

Rhina Cruz, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Anne Katz, J.), entered April 28, 2014, which conditionally granted tenant's motion to stay execution of the warrant of eviction in a nonpayment summary proceeding.

Per Curiam.

Order (Anne Katz, J.), entered April 28, 2014, reversed, with $10 costs, and tenant's motion denied. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order, with notice of entry.

Landlord commenced this summary nonpayment proceeding against tenant in August 2012, seeking eight months of rent arrears. Tenant interposed an answer, but failed to appear on a subsequent court date. As a result, a default final judgment was entered against tenant in September 2012, and a warrant of eviction was issued in November 2012. Tenant's motion to vacate the default was denied in December 2012, due to her failure to appear in court on the return date of the motion. During the ensuing 15 months, tenant brought numerous additional applications to stay execution of the warrant and extend her time to satisfy the judgment; and successfully obtained a myriad of court ordered stays, including one contained in a so-ordered stipulation between the parties.

Significantly, on the return date of tenant's ninth order to show cause, which was some 16 months after the default final judgment was entered, tenant owed $6,228.65 in rent. Although landlord could have obtained the immediate execution of the warrant of eviction at that time, the parties entered into a second stipulation, negotiated by counsel for both parties and with the assistance of the court (David J. Kaplan, J.), in an attempt to give tenant a final opportunity to avoid an eviction. This January 6, 2014 stipulation conditionally stayed execution of the warrant of eviction upon the represented tenant's compliance with a strict payment timetable. Critically, the stipulation provided that all payments were deemed "time of the essence" with "no default ... deemed de minimus."

It is not disputed that tenant subsequently failed to timely pay the $2,060.30 due under the stipulation by February 20, 2014. Only $688 was paid. In these circumstances, Civil Court (Anne Katz, J.) should not have granted tenant a further (tenth) stay of execution of the warrant [*2](see Wadsworth Ventura Assoc. 367 LLC v Frias, 101 AD3d 474 [2012]; Chelsea 19 Associates v. James, 67 AD3d 601 [2009]; Henry Hudson Gardens L.L.C v Bareda, 25 AD3d 466 [2006]; see also Harvey 1390 LLC v Bodenheim, 96 AD3d 664 [2012]). "Strict enforcement of the parties' stipulation . . . is warranted based upon the principle that parties to a civil dispute are free to chart their own litigation course" (Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 [1996]), and is essential to the management of court calendars and the integrity of the litigation process (see Hallock v State of New York, 64 NY2d 224, 230 [1984]).

The dissent conveniently ignores tenant's lengthy history of rent defaults in this proceeding (not to mention the 28 prior nonpayment proceedings commenced against her during the course of the tenancy), when it frames the dispositive issue as whether Civil Court abused its discretion in conditionally granting the "disabled and infirm rent stabilized tenant's motion . . . to stay, for a mere five days, the execution of the warrant . . . in order to pay the modest amount of $1,372,32 (which [tenant] had in her possession at the time of signing of the order to show cause and on the return date)." Unlike the dissent, however, we do not view tenant's final rent default in a vacuum, separate from all which preceded it. Given tenant's history of extensive and unexplained rent defaults, and the clear and unambiguous "time is of the essence ... no default . . . de minimus" language contained in the parties' ultimate two-attorney, so-ordered stipulation, it was an abuse of discretion to not strictly enforce this agreement according to its terms. From a policy perspective, "we would discourage landlords from resolving housing court matters through stipulations of settlement if we were not to enforce this stipulation" (Hotel Cameron, Inc. v Purcell, 35 AD3d 153, 156 [2006]).

The dissent's other arguments for refusing to enforce the stipulation are unpersuasive. The assertion that tenant had the payment due under the stipulation on the date her tenth order to show cause was signed (March 10, 2014), ignores that tenant failed to make the payment in the time required by the stipulation (February 20, 2014), as well as the "time is of the essence" provision contained therein. Nor do we find persuasive the dissent's attempt to casually brush aside the unambiguous terms of the stipulation by repeated references to the fact that the represented tenant is "disabled and infirm." While tenant's health is one of the particular facts and circumstances to be considered by the court in its "delicate balancing of the equities" (Parkchester Apts. Co. v Heim, 158 Misc 2d 982 [1993]), it does not constitute an automatic exemption to be robotically applied with a blind indifference to other considerations. "Given the circumstances under which the stipulation was executed and the provisions advantageous to tenant therein, equity would not be served by refusing to enforce the stipulation" (Hotel Cameron, Inc. v Purcell, 35 AD3d at 156).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Hon. Doris Ling-Cohan

Dissenting Opinion

[*3]

I respectfully dissent and vote to affirm, as it was not an abuse of discretion for the Civil Court to conditionally grant this disabled [FN1] and infirm, rent stabilized tenant's motion and to stay the execution of the warrant of eviction in this nonpayment proceeding - for a mere five (5) days - for her to pay the modest amount of $1,372.32 (which she had in her possession at the time of the signing of the order to show cause and on the return date), to prevent the forfeiture of a longstanding rent-stabilized tenancy, of over 34 years. "It is a well-settled principle of equity that courts do not look favorably upon the forfeiture of leases" (2246 Holding Corp. v. Nolasco, 52 AD3d 377 [1st Dept 2008][citations omitted)(reversing the Appellate Term and finding that the decision of the housing court judge to stay the eviction of an indigent tenant in a chronic nonpayment holdover proceeding was appropriate to prevent forfeiture of a 30-year tenancy, even though "time of the essence" payment terms in stipulation of settlement]; see also Dino Realty Corp. v. Khan, 46 Misc 3d 71 [App Term 2d, 11th & 13th Jud Dists 2014][stating that "the law abhors forfeiture of leases" and that "it is the policy of New York State to prevent unnecessary evictions, particularly of rent-stabilized tenants" [internal citations omitted]).

While I agree that courts favor the enforcement of settlement agreements, nevertheless, the Appellate Division, First Department has made it clear that, "a court always retains the power to vacate a warrant of eviction...for good cause shown'...even after the warrant has been executed" (Harvey 1390 LLC v. Bodenheim, 96 AD3d 664 [1st Dept 2012]. "A determination as to whether good cause exists is entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented" (id. at 664 [citations omitted, emphasis supplied]; see also RPAPL 749[3]; 102-116 Eighth Ave. Assoc., L.P. v. Oyola, 299 AD2d 296 [1st Dept 2002]; Parkchester Apts. Co. v. Scott, 271 AD2d 273 [1st Dept 2000].

In cases similar to the one herein, the Appellate Division, First Department and this court have held that, rather than applying a rigid formula, a fact-sensitive inquiry should be conducted, involving the examination of several factors including: the extent of tenant's delay in tendering payments, the length and nature of the tenancy, the tenant's advanced age or infirmities, the amount of the default, the particular tenant's history, tenant's ability to pay future rent, tenant's payment of arrears during the course of the proceeding, and a balance of the equities (see Harvey 1390 LLC v. Bodenheim, 96 AD3d at 666; Archstone Camargue I LLC v. Korte, 40 Misc 3d 103 [App Term, 1st Dept 2013]; Parkchester Apts. Co. v. Heim, 158 Misc 2d 982, 983-84 [App Term, 1st Dept 1993]). Upon engaging in this "fact-sensitive inquiry", the Appellate Division in Harvey 1390 v. Bodenheim, found that the lower court judge did not abuse her discretion and reversed the Appellate Term's reversal of the lower court's order, which had granted a 15-day stay of the execution of a warrant of eviction to permit the payment of any outstanding arrears, given the tenant's partial payments and good faith efforts to secure rental assistance (Harvey 1390 v. Bodenheim, 96 AD3d at 665). Here, under the within facts and circumstances, there was sufficient good cause and, thus, it was well within the Civil Court's discretion, utilizing the Harvey 1390 LLC v. Bodenheim "fact-sensitive inquiry", to grant this disabled and infirmed tenant's motion to vacate her default in making a single payment owed pursuant to the parties' [*4]January 6, 2014 stipulation of settlement, in the modest amount of $1,372.32 (funds which it is undisputed that the tenant had in her possession at the time of the signing of the order to show cause and on the return date), to preserve her over 34-year, rent stabilized tenancy. Id.[FN2]

Significantly, the record reflects that, at the time of the signing of the parties' January 6, 2014 stipulation, the landlord received the tenant's tender in court of nearly all of the rental arrears owed through January 2014 [FN3]

, with the modest exception of less than one (1) month's rent, which, it is not disputed, the tenant had already mailed to the landlord, prior to the January 6, 2014 court date.[FN4] Nevertheless, despite that the tenant was in essence fully current in her rent [*5]through (and including) January 2014 (and in fact had a credit balance of $4.34), the January 6, 2014 stipulation reflected a balance of rent owed, merely because the landlord had elected to apply the tenant's rent payments, to its previously incurred legal fees. Notably, however, in residential cases, evictions may not be predicated upon the failure to pay attorneys' fees which have been deemed additional rent, a principle ignored by the majority (see 4220 Broadway Assoc. v. Perez, 187 Misc 2d 602 [App Term, 1st Dept 2000][Appellate Term affirmed the Civil Court's vacatur of a final judgment and warrant in a nonpayment proceeding upon tenant's tender of all outstanding arrears, noting that the "[l]andlord's election to first apply tenant's tender toward the non-possessory judgment for attorneys' fees, thereby creating a shortfall' in the amount of tenant's tender, does not dictate a contrary result...[since] attorneys' fees do not constitute additional rent in the context of rent regulated tenancies and may not serve as the predicate for an eviction"]; Scherer, Residential Landlord-Tenant Law in New York §16:5. In fact, pursuant to New York's Rent Stabilization Law, "attorney's fees do not constitute and are not recognized as comprising legal regulated rent'...involving rent stabilized premises..." and, thus, may not serve as a basis for a possessory judgment and/or an eviction (Silber v. Schwartzman, 150 Misc 2d 1 [App Term, 1st Dept 1991][citations omitted]; Scherer, Residential Landlord-Tenant Law in New York §16:8). Thus, the majority, in reversing the lower court and evicting the tenant, is acting contrary to prevailing case law, as the $1372.32 was attributable to attorneys' fees.

In evaluating the Harvey 1390 LLC v. Bodenheim factors, as directed by the Appellate Division, First Department, it is also significant that subsequent to the signing of the January 6, 2014 stipulation, the tenant had been timely paying her monthly rent, by proactively instituting electronic payments directly to the landlord from her bank account, evidencing an ability to pay future rent and, notably, at the time of the granting of the stay at issue, the tenant had all arrears due under the stipulation (which were, in actuality, attributable to attorneys' fees) in her possession (see Harvey 1390, 96 AD3d at 665 [tenant made partial payments and at the time of the stay tendered almost all of the money due, owing less than a month's rent]; Parkchester Apts. Co. v. Scott, 271 AD2d at 273-74 [63-year-old tenant made payments towards the judgment and arranged for automatic withdrawal of monthly rent from his bank account]; Archstone Camargue I LLC v. Korte, 40 Misc 3d at 104 [tenant made partial payments and tendered the full amount of the arrears at the time of the stay of execution of the warrant]).

Further, in balancing the equities, as urged by the Appellate Division in Harvey 1390 LLC v. Bodenheim (96 AD3d at 665), it is noted that the landlord was "made whole", in that the January 6, 2014 stipulation included the payment of the landlord's legal fees and the Civil Court's [*6]decision, now on appeal, specifically provided that the landlord could seek additional legal fees incurred as a result of the tenant's default (Lafayette Boynton Hsg. Corp. v. Pickett, 44 Misc 3d 140[A][App Term, 1st Dept 2014]).

While the majority chooses to only focus on the tenant's rental history and the frequency of the tenant's orders to show cause (thereby ignoring the Harvey v Bodenheim factors), notably, this court in Parkchester Apartments Co. v. Heim (158 Misc 2d 982 [App Term, 1st Dept 1993]), specifically rejected the adoption of a "hard and fast rule" based upon "the number of prior requests for similar relief made by the tenant". Recognizing that adopting such a bright-line rule would "effectively strip...[the court] of its inherent discretion in such matters once the tenant has brought on some arbitrarily determined number of prior applications", this court acknowledged that "[w]hile the number and frequency of a tenant's prior requests for relief is one factor to be considered...it is not, nor should it be the only factor" (id. at 983). Further, "[e]ach application requires a sui generis inquiry devoted to the particular facts and circumstances of the case then before the court, including the extent of the delay and the nature and amount of the payment default(s), as well as a delicate balancing of the equities between the parties..." (id. at 983-84.

Moreover, significantly, it was never disputed by the landlord that the tenant is disabled, as evidenced by her receipt of Supplemental Security Income (SSI) and Disability Rent Increase Exemption (DRIE) benefits, and that her rent is "frozen" at $688.33 (Record on Appeal at 18, ¶4). In fact, a tenant cannot receive DRIE without the landlord's knowledge, as it receives a tax decrease. Administrative Code of City of NY §26-406 (d). It is also not disputed that the tenant recently had surgery and suffers from Post Traumatic Stress Disorder, Major Depressive Disorder, Asthma, Hypecholesterolemia and Hypertension, hardships expressly considered by the lower court in its decision now on appeal.[FN5]

The court further notes that, for most of this proceeding, the tenant who indisputably suffers from a medical disability and other ailments, was unrepresented and was only able to secure legal representation on her ninth order to show cause. Further, arguably, given the knowledge of her disability, the landlord was under an affirmative obligation to advise the court so that the appointment of a guardian ad litem (GAL) could be explored and, perhaps, she would not have had to seek repeated relief from the court (see Sarfaty v Sarfaty, 83 AD2d 748 [4th Dept 1981][plaintiff who had knowledge that defendant was under mental disability had the burden to bring that fact to the court's attention, to permit the court to determine whether a guardian ad litem should be appointed to protect the defendant's interest]).[FN6]

Although the majority stresses that the parties' stipulation included "time of the essence" and "no default...deemed de minimus" phrases, such inclusion does not necessarily preclude the result reached below, where other persuasive factors exist (see 2246 Holding Corp. v. Nolasco, 52 AD3d at 377-78 [reversing this court and finding that the decision of the housing court judge to stay the eviction of an indigent tenant in a chronic nonpayment holdover proceeding was appropriate to prevent forfeiture of a 30-year tenancy, even though "time of the essence" payment terms included in stipulation of settlement]. Furthermore, notably, the parties' stipulation initially contained a "no further order to show cause" provision, which was crossed out by the parties, recognizing that the court in fact had the discretion to sign an order to show cause, upon appropriate circumstances.

Accordingly, reviewing the above-mentioned factors, the lower court did not abuse its discretion in directing the landlord to accept the tenant's payment of $1,372.32 (attributable to attorneys' fees) and stay the warrant of eviction - for a mere five (5) days. Such decision is not only mandated by the Appellate Division, First Department decision in Harvey 1390 LLC v. Bodenheim, (96 AD3d 664), but is consistent with precedent of this court. Recently, in Lafayette Boynton Hsg. Corp. v. Pickett, (44 Misc 3d 140[A][App Term, 1st Dept 2014]), this court found that it was not an abuse of discretion and affirmed a housing court decision, which conditionally granted a long-term (46-year) disabled and infirm tenant's motion to be restored to possession of a rent stabilized apartment, upon the tenant's payment of arrears, costs and attorney's fees to the landlord, in two-week's time, finding sufficient good cause, since a substantial portion of the arrears had been tendered and the tenant had various agency commitments of funds to satisfy the balance. Moreover, this court permitted the tenant in Lafayette Boynton Hsg. Corp v. Pickett (44 Misc 3d 180 [A]), (as the Appellate Division also did in Harvey 1390 LLC v. Bodenheim, supra), additional time to pay, beyond the return date, based on agency commitments. This case is even more compelling, in that at the time of the signing of the parties' stipulation, the tenant had paid all of her outstanding rent [FN7]

, and, but for the election to apply the tenant's rental payment to the landlord's legal fees, the tenant would not have even been subjected to a claim of default. Further, at the time of the issuance of the lower court's decision/order now on appeal, tenant Cruz had in her possession and immediately available to tender to the landlord, all outstanding monies owed to the landlord (including attorneys' fees) and, subsequent to the signing of the January 6, 2014 stipulation, the tenant had been timely paying her monthly rent, in accordance with the terms of the parties' stipulation of settlement. Thus, at the time of the issuance of the decision/order now on appeal, the landlord had been made whole, which had not been the case in Harvey 1390 LLC v. Bodenheim or Lafayette Boynton Hsg. Corp. v. Pickett, but, nonetheless, such appellate courts stayed the evictions for future payments, based upon showings of "good cause". Morever, in Lafayette Boynton Hsg. Corp. v. Pickett (44 Misc 3d 180 [A]), this court astutely noted that, "the protracted nature of the [*7]proceedings, although understandably a source of frustration for the landlord, did not warrant the forfeiture of this tenancy, particularly given the tenant's good faith, ultimately successful efforts to make the landlord whole by securing emergency rental assistance and tendering the full rent arrears and litigation costs, including attorney's fees, owed to and incurred by [the] landlord". Consequently, there was no abuse of discretion by the lower court herein.

Similarly, in the case of Archstone Camargue I LLC v. Korte (40 Misc 3d at 104), this court found no cause to disturb the lower court's discretionary determination to vacate a warrant of eviction so as to preserve the long-term (over-30-year) rent stabilized tenancy. In Archstone Camargue I LLC v. Korte, as in this case, the tenant had made partial payments pursuant to the terms of the parties' stipulation of settlement, and was able "to secure emergency rent relief from a City agency", which this court determined was sufficient "good cause" to warrant vacatur of the warrant, as granted by the lower court (id. at 104 [citations omitted]; see also 361 West 121st Housing Dev. Fund Corp. v. Frazier, 26 Misc 3d 46 [App Term, 1st Dept 2009][reversed the trial court's denial of a tenant's motion to stay execution of a warrant of eviction in a non-payment summary proceeding, "pursuant to the court's supervisory power over enforcement of so-ordered stipulations...", since the late payment was attributable to the attorneys' fees component of the stipulation, and not to actual rent owed]).

As in Tricham Hous. Assoc. v. Akinduyi (38 Misc 3d 146[A][App Term, 1st Dept 2013]), this court should similarly hold that the lower court did not abuse its discretion and affirm the lower court's finding of good cause for vacating the warrant of eviction, "where, [as here], the long-term tenant" tendered the full judgment amount. Notably, relying upon Harvey 1390 LLC v. Bodenheim (96 AD3d 640), this court in in Tricham Hous. Assoc. v. Akinduyi (38 Misc 3d 146[A]), specifically stated that " [a]lthough enforcement of stipulations of settlement is favored...a court always retains the power to vacate a warrant of eviction prior to its execution for good cause shown'" )(id. [citations omitted]).

The cases relied upon by the majority do not warrant a contrary result. In fact, the case of Parkchester Apartments Co. v. Heim (supra)[FN8]

actually supports an affirmance of the decision now on appeal. The cases of Wadsworth Ventura Assoc. 367 LLC v. Frias (101 AD3d 474 [1st Dept 2012]), Henry Hudson Gardens LLC v. Bareda (25 AD3d 466 [1st Dept 2006]) and Hotel Cameron, Inc. v. Purcell (35 AD3d 153 [1st Dept 2006]) are easily distinguishable in that they involve holdover proceedings, rather than non-payment proceedings, as is the case herein. Additionally, significantly absent from such decisions is any mention as to the pertinent facts, such as the length of the tenancies, whether the tenants were rent stabilized and/or the health of [*8]the tenants - all factors this court is bound to review in its "fact-sensitive inquiry" under Harvey v Bodenheim, as directed by the Appellate Division. Further, in Wadsworth v. Ventura Assoc. (101 AD3d at 472)(a chronic non-payment holdover proceeding), the tenant had previously violated several probationary stipulations and, as such, the appellate courts refused to disturb the trial court's discretionary ruling. In Henry Hudson Gardens LLC v. Bareda (25 AD3d at 466), the Appellate Division also refused to disturb the lower court's decision which denied the tenant's motion for relief from the stipulation, after several late payments were made, noting it was the fourth holdover proceeding for chronic non-payment of rent commenced against such tenant. Moreover, unlike the case herein, Hotel Cameron, Inc. v. Purcell (35 AD3d at 153) was a nuisance holdover proceeding, in which a hearing was conducted by the lower court; the Appellate Division, in reversing the Appellate Term, noted that the "Civil Court's determination ...should not have been disturbed by the Appellate Term" (id. at 155). Similarly, this court should not disturb the lower court's discretionary ruling.

While the majority also relies upon Chelsea 19 Associates v. James (67 AD3d 601 [1st Dept, 2009]), the Appellate Division in Harvey 1390 LLC v. Bodenheim (supra) explicitly concluded that,

"nothing in Chelsea 19 abrogates a court's authority, in the exercise of its discretion, to vacate a warrant of eviction based on a showing of good cause. Nor does the case stand for the proposition that a court may never consider a tenant's difficulty in obtaining funds when determining, under all the circumstances, whether good cause exists to stay an eviction warrant. These cases involve fact-sensitive inquiries, and must be decided after review of all the circumstances, including the extent of the delay, the length and nature of the tenancy, the amount of the default and the particular tenant's history, as well as a balancing of the equities of the parties...".

(citations omitted). Notwithstanding the Appellate Division's clear directive, significantly, the majority makes virtually no mention of Harvey 1390 LLC v. Bodenheim (96 AD3d 664), the most recent and leading case pertaining to the within matter, instead, citing to, inter alia, Mill Rock Plaza Assoc. v. Lively (224 AD2d 301 [1st Dept 1996]), which was decided sixteen years prior to Harvey 1390 LLC v. Bodenheim (96 AD3d 664). Further, Mill Rock Plaza Assoc. v. Lively is a mere three (3) sentences in length, provides few facts (such as the length of the tenancy or whether the tenant was rent stabilized), and offers little, if any, guidance. Also, it appears that the tenant in Mill Rock Plaza Associates had defaulted in the payment of rent four (4) times after signing the stipulation at issue, and each time received an extension of time by the trial court. Id. at 301. In contrast, here, the long-term disabled and infirm tenant paid all of her rental arrears upon the signing of the parties' stipulation at issue, was current in the payment of her monthly rent, and was merely briefly delayed in the payment of an amount attributable to the landlord's attorneys' fees, but, nevertheless, was ready, willing and able to make full payment of the balance owed pursuant to the parties' stipulation, on the return date of her motion, and, in fact, paid in full.

Evicting this disabled and infirm tenant from her over 34-year rent-stabilized home and [*9]forcing her to be homeless [FN9]

, when, at the time the Civil Court properly exercised its discretion by staying the execution of the warrant of eviction, the tenant had all of the arrears (which were attributable to the landlord's legal fees) in her possession, is contrary to the Appellate Division's holding in Harvey 1390 LLC v. Bodenheim (96 AD3d 664), and binding precedent of this court. As such, the April 25, 2014 decision/order by Judge Katz should be affirmed, as it was a proper exercise of the court's discretion.

Decision Date: February 05, 2016

Footnotes

Footnote 1:Even though the record reflects that Ms. Cruz suffers from mental and physical illnesses, it does not indicate whether the appointment of a guardian ad litem (GAL) was explored.

Footnote 2:While the majority asserts that affirming the decision of the lower court, which correctly balanced the equities pursuant to Harvey 1390 v. Bodenheim (96 AD3d 664), amounts to an automatic exemption from the terms of the stipulation at issue and "a blind indifference to other considerations", rather, the majority, by mechanically applying the general preference to enforce parties' stipulations to ostensibly uphold the "integrity of the litigation process" (Hallock v State of New York, 64 NY2d 224, 230 [1984]), blindly ignores all other factors which this court is bound to consider under prevailing case law (Harvey 1390 v. Bodenheim, 96 AD3d at 665-666) and the well-established precedent that a court always retains its supervisory control over its cases and discretionary power with respect to stipulations of settlement (see Teitelbaum Holdings, Ltd. v. Gold, 48 NY2d 51, 54 [1979]["a court possesses discretionary power to relieve parties from the consequences of a stipulation effected during litigation"]; BML Rlty. Group v. Samuels, 15 Misc 3d 30 [App Term, 1st Dept 2007][Appellate Term, in reversing the housing court, "exercise[d] discretion and grant[ed] the [tenant's] motion to vacate the stipulation and final judgment...[in a proceeding involving a 30-year rent-stabilized tenancy of an elderly and infirm tenant] [i]n light of the court's... responsibility, in particular, for overseeing settlements of proceedings involving those who are unable to defend themselves...'" [citations omitted][emphasis supplied]).

Footnote 3:The in-court tender consisted of money orders and emergency assistance Department of Social Services [DSS] checks.

Footnote 4:It is noted that the payment which is the subject of the within appeal is the $1,372.32 (the legal fees), which was to be paid by February 20, 2014 ($2,060.32 - $688 mailed by tenant on January 3, 2014 = $1,372.32). Moreover, despite that this case was commenced as a non-payment proceeding, as opposed to a chronic non-payment holdover proceeding, a probationary period was provided to the tenant. ~~Details of the arrears and payments made at or about the time the parties signed the January 6, 2014 stipulation of settlement in court, are relevant, and shed light on the equities and are as follows: the stipulation indicates that the rent owed through January 2014 was $6,228.65, of which the tenant tendered $5,544.99 in court, leaving a minimal "balance" of rent owed through January 2014 of $683.66. The stipulation also indicates that the tenant claimed (and it is undisputed by the landlord) that, on January 3, 2014, just prior to the court date, she had mailed $688, to cover January 2014 rent. Thus, at the time of the signing of the January 5, 2014 stipulation, the tenant did not owe any rent to the landlord, and in fact, had a credit balance of $4.34. ~~Nevertheless, the January 6, 2014 stipulation provided that the execution of the warrant would be stayed through July 31, 2015, conditioned upon respondent: (1) paying $2,060.32 (comprised of the $688 mailed by tenant to landlord on January 3, 2014 [prior to the January 6, 2014 court date] and $1,372.32 [balance of "rent" owed through January 2014, but, in actuality, consisted of the landlord's legal fees], by February 20, 2014); and (2) consenting to a probationary period from January 6, 2014 through July 31, 2015, for the payment of her monthly rent, to be paid by the 10th of each month.

Footnote 5:In her supporting affidavit, the tenant states that, "[b]ecause of [her] illness [she has] great difficulties coping with many problems, including [her] rental obligations". However, she further states that "now [she is] able to pay the ongoing rent, which is evidence[d] by the fact that [she is] paying the rent by direct payments from [her] bank". Record on Appeal, at 18-19.

Footnote 6:Once a GAL is appointed, the court has an affirmative duty to supervise the GAL (see BML Rlty. Group v Samuels, 15 Misc 3d 30, 31-32 [App Term, 1st Dept 2007][the Appellate Term, in reversing the civil court, referenced "the court's continuing obligation to supervise the guardian ad litem's work[,]...its ultimate responsibility for the GAL's determinations...and its responsibility, in particular, for overseeing settlements of proceedings involving those who are unable to defend themselves...'"]; see also New York City Housing Authority v Jackson, 13 Misc 3d 141[A][App Term, 2nd & 11th Jud Dists 2006].

Footnote 7:As indicated, the tenant had previously paid one month's rent by mail, which had not been credited to her at the time of the signing of the January 6, 2014 stipulation, so, in fact, she had paid in-full, and had a credit balance of $4.34.

Footnote 8:In Parkcheter Apartments Co. v Heim, the Appellate Term in deciding that it disagreed with adopting a "hard and fast rule" for use "in determining when and under what circumstances the Judges of the Civil Court may sign an ex parte order to show cause brought by a residential tenant seeking relief from default in payment under a stipulation settling a nonpayment proceeding", determined that the housing court judge "properly exercised his discretion" in granting the tenant's order to show cause, where the tenant tendered to the landlord all outstanding arrears and ancillary fees, within eight (8) days of the due date agreed to by stipulation of the parties, "so as to avoid a forfeiture of the long-term rent stabilized tenancy" (Parkchester Apts. Co. v. Heim, 158 Misc 2d at 983).

Footnote 9:Tenant Cruz asserts that if she is "evicted [she] will be homeless because [she has] no other place to live". Record at 18, March 10, 2014, Affidavit in Support of Order to Show Cause, ¶2.