Friben Realty Corp. v Dordan

[*1] Friben Realty Corp. v Dordan 2006 NY Slip Op 50493(U) [11 Misc 3d 136(A)] Decided on March 27, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2004-1760 Q C.

Friben Realty Corp., Respondent,

against

Geri Dordan and WILLIAM DORDAN, Tenants, -and- THERON DORDAN, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated December 2, 2004. The order denied appellant Theron Dordan's motion, in effect, for relief from a stipulation dated June 17, 2004 as amended by a stipulation dated July 15, 2004 and from the final judgment and warrant entered and issued pursuant thereto.

Order affirmed without costs.

The Housing Court did not improvidently exercise its discretion in denying appellant's motion for relief from the stipulations. It is uncontroverted that appellant, with the assistance of counsel, entered into two so-ordered stipulations of settlement requiring the payment of rents owed and due at an agreed-upon monthly rate. It is also uncontroverted that appellant was fully aware of the existence of the 1989 Division of Housing and Community Renewal (DHCR) rent reduction order at the time she entered into the stipulations. Indeed, a copy of the DHCR order was included in the papers which appellant submitted in support of the motion which resulted in [*2]the stipulations in question. Having agreed to pay the arrears at a rate sought by landlord, despite the 1989 DHCR order, appellant cannot now rely on that order as a basis for unraveling the stipulations.

Moreover, nothing in the record supports a finding of fraud, mistake, collusion, accident or other good cause sufficient to justify vacating the stipulations (see Hallock v State of New York, 64 NY2d 224 [1984]). To the contrary, the record reveals that appellant entered into both stipulations in open court with the benefit of counsel and with full knowledge of the 1989 DHCR order. [*3]

Accordingly, appellant's motion to vacate the stipulations and the final judgment of possession was properly denied.

We note that appellant's claim with respect to a DHCR order dated December 23, 2004, which order was issued subsequent to the date of the order appealed from, was not before the court below, and our determination is without prejudice to appellant's assertion in the court below of any claim that she may have with respect to said order.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 27, 2006