Knight v Lefevre

[*1] Knight v Lefevre 2006 NY Slip Op 50745(U) [11 Misc 3d 143(A)] Decided on April 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-166 K C.

Andrienne Knight, Respondent,

against

Tina Lefevre, Appellant, -and- "John Doe" & "Jane Doe", Defendants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered on January 25, 2005. The order denied defendant Tina Lefevre's motion which, in effect, sought to vacate the warrant of eviction.

Order affirmed without costs. [*2]

In this ejectment action, it is uncontroverted that on February 27, 2004, defendant entered into a stipulation of settlement whereby she consented to, among other things, a judgment with execution of the warrant stayed until June 30, 2004. On January 11, 2005 - almost seven months after the expiration of the stay - defendant moved to stay the execution of the warrant on the ground that her lease was renewed on July 28, 2004.

In our view, defendant offers no basis for vacating the warrant. Other than defendant's bald, self-serving statement that she had executed a renewal lease, there is no proof in the record that such a lease existed. Indeed, a copy of the purported lease is conspicuously absent from defendant's submissions.

Moreover, nothing in the record supports a finding of fraud, mistake, collusion, accident or other good cause sufficient to justify vacating the stipulation (see Hallock v State of New York, 64 NY2d 224 [1984]). To the contrary, the record reveals that defendant entered into the stipulation in open court freely and voluntarily. Insofar as defendant now claims, for the first time on appeal, that she was never served in this action and that she entered into the stipulation because she did not want to stay where she was not wanted, her claims are not preserved, and we decline to review them in the interest of justice. [*3]
Accordingly, defendant's motion to vacate the stipulation and warrant was properly denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: April 27, 2006