Fannie Mae v Cianciulli
Annotate this CaseDecided on December 13, 2017
City Court of Mount Vernon
Fannie Mae A/K/A FEDERAL NATIONAL MORTGAGE ASSOCIATION, Petitioner,
against
Carmela Cianciulli; PASQUALE CIANCIULLI; CARMINE J. FUSCHETTO; DAWN M. SILVA; HUGO DOE 1-2; JANE DOE 1-2; ALL OTHER OCCUPANTS, Respondents.
0481-17
Felicia Ekejiuba, Esq.
Attorneys for Petitioner
Fein, Such & Crane, LLP
1400 Old Country Road, Suite C103
Westbury, New York 11590
Ira S. Clair, Esq.
Clair & Gjertsen
Attorneys for Respondents Cianciulli & Magliore
4 New King Street
White Plains, NY 1060
Luz Lizarazo, Esq.
Cabinillas & Associates, P.C.
Former Attorneys for Respondents Carlme and Pasquale Cianciulli
120 Bloomingdale Road, Suite 400
White Plains, NY 10605
Adam Seiden, J.
Petitioner commenced this post-foreclosure holdover action in February 2017 seeking to recover the premises at 142 Overlook Street, Unit 1, Mount Vernon, New York. On May 30, 2017 attorneys for both sides appeared. During the calendar call, petitioner's counsel sought final possession of the premises with a two month stay. Initially respondents' counsel, Luz Lizarazo of Cabanillas & Associates, P.C., advised the Court that she wanted the matter adjourned for trial and would not agree to a two month stay. However, when the Court asked respondents' counsel what the triable issue of facts were, she could not advance a reason for having this matter going to trial, other than her clients wanted to go to trial. Later, while the landlord-tenant part was still in session, attorneys for both sides appeared for a second calendar call. Ms. Lizarazo advised the Court that respondents would agree to a final judgment of possession with a three month stay. Petitioner accepted these terms. Accordingly, the Court (J. Johnson) issued a final judgment of possession with a stay until August 31, 2017. The Judgment and Warrant were entered on September 11, 2017.
Respondents' new counsel, Ira S. Clair (no substitution of counsel has been filed with the Court to date), now moves by Order to Show Cause to vacate the judgment and warrant of eviction. In support of the motion, Respondent Pasquale Cianciulli affirms that he and his family are completely ignorant of what transpired with his former counsel, Cabanillas & Associates, P.C., in court. He argues that he nor his wife or son were in court on May 30, 2017. He maintains that no settlement was reached and he did not receive notice of further proceedings. He states that once he received notice of the warrant of eviction, he reached out to his attorneys at Cabnillas & Associates but did not receive a response. Thus, respondents obtained new counsel.
Mr. Clair argues that the petition is defective on its face due to the failure to exhibit the referee's deed as required by statute. He states that pursuant to RPAPL § 713 (5), petitioner was required to "exhibit" the Referee's Deed to respondents. Instead, per the affidavit of service, the Referee's Deed was delivered with the 10 day notice to quit via "nail and mail" service. Accordingly, counsel argues that the proceeding should have been dismissed. Counsel further argues that respondents never went to court and never heard anything of significance from prior counsel. He maintains that a settlement was not authorized by the respondents and that the appropriate affirmative defense was alleged in the answer. Counsel further argues that the predicate notices served in 2015 are too stale as a matter of law to support a summary proceeding.
In opposition to the motion, petitioner argues that at or around the same time an answer was filed in this proceeding, respondent's former counsel filed a second application in Supreme Court requesting a stay of the holdover proceeding in order to challenge the judgment and foreclosure sale. The motion alleged defective service of process after the first application alleging that he was not aware of many of the proceedings in the underlying foreclosure matter was denied. The Supreme Court declined to sign the second order to show cause. A copy of the Decision and Order is attached to Petitioner's Opposition papers as Exhibit B. Petitioner argues that respondents were represented at each hearing in this matter by counsel and on the final date, May 30, 2017, respondents' former counsel negotiated a settlement with petitioner's counsel that would allow the respondents to remain in premises for three months without having to pay use [*2]and occupancy. Petitioner's counsel argues that the stipulation of settlement entered into open court is binding and that respondents have provide no basis warranting vacatur. Petitioner argues that the respondents have received the benefit of the stipulation, which provided them with three months in the premises in order to vacate. In addition, respondents have now received two additional months from the date they agreed to surrender the premises. Counsel argues that respondents' application is in bad faith and is simply a means to continue to deprive petitioner of possession of the property. Counsel further argues that respondents' claims concerning defects in the petition and predicate notices were raised in their answer and waived by virtue to the agreement between the parties. Counsel argues that the "nail and mail" service of the Referee's Deed was adequate since the relevant statute contains no express requirement of personal exhibition. He maintains that one can "exhibit" a document to a pleading or motion by merely attaching it to a document. Petitioner also argues that the respondents fail to reference any case law to support their stale predicate notice claim.
This Court recognizes that stipulations of settlement are favored by the courts, and their terms should not be lightly set aside, especially where they are entered in open court. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or duress should a party be relieved from the consequences of a consent stipulation (See Perrion v Bimasco, 234 AD2d 281, 651 N.Y.S.2d 53 (2d Dept. 1996)). By the terms of the stipulation, respondents were granted a three month stay to remain in the premises without having to pay use and occupancy. Prior to the date respondents' former counsel consented to final judgment of possession on behalf of her clients, Cabinallas & Associates had already appeared six times for respondents. Respondents claim here that they were unaware of the stipulation of settlement is quite similar to their claim in the Supreme Court action wherein they claimed "they were not aware of many of the subsequent proceedings such as the foreclosure settlement conference." Respondents have received the benefit of the negotiated settlement and have now remained in the premises three and a half months past the date they were to vacate the premises without paying use and occupancy. The Court finds that their self-serving claim that they were unaware of the proceedings to be incredible.
After reviewing the Court file and papers submitted, the Court finds that respondents have raised no grounds to disturb the stipulation or vacate the judgment and warrant of eviction. By entering into the stipulation, respondents waived any affirmative defenses (Monroe Place Associates v Arango, 28 Misc 3d 130A (2d Dept. 2010); 2380-86 Grand Ave. Assoc., LLC v Ortega, 20 Misc 3d 135A (1st Dept 2008)).Accordingly, the order to show cause is denied. The warrant of eviction shall issue with no further stay. In light of the foregoing, the remaining issues need not be addressed.
This constitutes the Court's Decision and Order.
The Court reviewed and considered the following papers on this motion: Order to Show Cause; Affirmation in Support, dated October 24, 2017; Affidavit in Support; Exh. A. Affirmation in Opposition, dated November 1, 2017. Affirmation in Reply, dated November 16, 2017, Exh.
Dated: December 13, 2017
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
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