667 E. 187th St. L.L.C. v Walker

[*1] 667 E. 187th St. L.L.C. v Walker 2009 NY Slip Op 50830(U) [23 Misc 3d 1118(A)] Decided on April 2, 2009 Civil Court Of The City Of New York, Bronx County Villella, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2009
Civil Court of the City of New York, Bronx County

667 East 187th Street L.L.C., Petitioner,

against

Shareece Walker, Respondent-Tenant.



L & T 56537/08



Appearances of counsel:

For Petitioner: Doyle & Broumand, LLP by Julie Sargis, Esq.

For Respondent: Legal Services NYCBronx by Elizabeth Maris, Esq.

Louis Villella, J.

Petitioner commenced this summary nonpayment proceeding seeking rent arrears for apartment 2 located at 667 East 187th Street, Bronx, New York. The parties appeared in court on October 14, 2008 and settled the proceeding. Respondent, pro se, consented to a final judgment in the amount of $6,805.44 as all arrears through October 2008, with the warrant of eviction to issue forthwith and execution stayed through November 15, 2008 for payment of the judgment plus the November 2008 rent.

Respondent, now represented by counsel, brings the instant motion to vacate the stipulation and judgment entered herein. Alternatively, respondent seeks time to vacate the premises.

Stipulations in "open court" are generally favored and such agreements are enforced and essential to efficient dispute resolution, expeditious management of court calendars, and the integrity of the litigation process. Hallock v. State of New York, 64 NY2d 224 (1984). A court should not relieve a party from the terms of a stipulation without a showing of fraud, collusion, mistake, accident, or other grounds sufficient to invalidate a contract. Matter of Frutiger, 29 NY2d 143 (1971). A court "has control over stipulations and power to relieve from the terms thereof when the parties can be placed in statu quo." Id. citing Campbell v. Bussing, 274 A.D. 893 (2nd Dept. 1948). As a general rule, a court can relieve parties from the terms of a stipulation "[w]here both parties can be restored to substantially their former position . . . if it appears that the stipulation was entered into inadvisedly, or that it would be inequitable to hold the parties to it." Id. citing Magnolia Metal Co. v. Pound, 60 A.D. 318 (1st Dept. 1901) More recent cases have [*2]also held that a court may exercise its discretion and look beyond the traditional grounds for vacatur if it appears that the stipulation is unduly harsh or unjust and the parties may be returned to their former status. Leeds v. Granger, N.Y.L.J., Apr. 12, 1990, p. 27, c. 5 (A.T. 1); see also Woodruff Corp. v. Lacrete, 154 Misc 2d 301 (Civ. Ct. Kings Co. 1992).

Housing court is without authority to modify the terms of a stipulation. 15 East 64th Street v. Rogin, N.Y.L.J., March 28, 1991, p. 25, c. 1 (A. T. 1).

Respondent argues, through counsel, that she obtained a Section 8 voucher through the New York City Housing Authority on or about July 28, 2008. Thereafter, she alleges that she presented the voucher to petitioner who refused to accept it in violation of N.Y.C. Admin. Code § 8-107(5)(a)(1) which states:

[i]t shall be an unlawful discriminatory practice for the owner, lessor, or managing agent . . . [t]o refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because. . . of any lawful source of income of such person or persons.

This amendment to the New York City Administrative Code ("Local Law 10") was enacted on March 26, 2008 and courts have held that this law requires all landlords of buildings with six or more units to accept Section 8 rent subsidies for new tenants as well as tenants in possession regardless of whether a landlord is receiving tax abatements. Timkovsky v. 56 Bennett, L.L.C, 2009 WL 445097 (Sup. Ct. NY Co); cf. Matter of Rizzuti v. Hazel Towers Co., L.P., N.Y.L.J., Apr. 2, 2008, p. 27, c. 1 (Sup. Ct. NY Co). Landlords who violate Local Law 10 may be subject to discrimination complaints before the New York City Human Rights Commission. Timkovsky v. 56 Bennett, L.L.C., supra.

Here respondent entered into possession pursuant to a rent-stabilized lease for a one-year term commencing July 1, 2007 at a rental amount of $1112.00 per month. The court notes that the October 14, 2008 stipulation indicates that the rent is currently $1145.36 per month. A new lease would have commenced on July 1, 2008. Petitioner argues that respondent has failed to submit an affidavit of merit. However, that respondent's answer, signed by a clerk of the court, alleges that petitioner refused to accept Section 8. Petitioner argues that no landlord is required to accept Section 8, and that petitioner had advised respondent that it would not accept a Section 8 voucher. The court notes that respondent entered into her tenancy prior to the enactment of Local Law 10. At that point in time petitioner had the right to decline a Section 8 voucher. After March 26, 2008, however, petitioner, as well as any other landlord of a building with six or more units, would not be able to decline payment by Section 8 voucher without running afoul of Local Law 10. From the undisputed facts herein, it appears that respondent has made out a prima facie claim with respect to a violation of Local Law 10.

Accordingly, the court vacates the stipulation of October 14, 2008 on condition that respondent pay rent which has accrued since November 1, 2008 at the rate of 30% of her gross income per month in order to maintain the status quo at the time of the settlement. This payment shall be made by cash, money order, or certified funds, on or before April 28, 2009 at which time the proceeding shall be restored to the Part K calendar at 9:30 A.M., Room 350. This constitutes the decision and order of this court. [*3]

Dated: Bronx, New York_______________________________________

April 2, 2009LOUIS VILLELLA, J.H.C.