Tsz Lin Cheung v Moluka Enters., LLC

[*1] Tsz Lin Cheung v Moluka Enters., LLC 2010 NY Slip Op 51524(U) [28 Misc 3d 139(A)] Decided on August 30, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570715/09.

Tsz Lin Cheung, Petitioner-Tenant-Appellant,

against

Moluka Enterprises, LLC, Bellmarc Property Management, Yolanda Queen and Liora Elghanayan, Respondents-Landlords-Respondents, -and- The New York City Department of Housing Preservation and Development and New York City Department of Buildings, Respondents.

Petitioner-tenant appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), dated July 7, 2009, which granted respondents-landlords' motion to vacate the stipulation of settlement in a Housing Part enforcement proceeding, and denied tenant's cross motion to hold landlords in contempt.

Per Curiam.

Order (David B. Cohen, J.), dated July 7, 2009, affirmed, without costs.

As Civil Court correctly concluded, the stipulation of settlement between the parties must be vacated, since landlords' ability to perform their obligations under the stipulation was rendered legally impossible (see generally 407 E. 61st Garage v Savoy Fifth Ave. Corp., 23 NY2d 275 [1968]; Stasyszyn v Sutton E. Assoc., 161 AD2d 269 [1990]). Specifically, landlords' ability to, among other things, restore tenant to possession of the subject apartment premises was rendered legally impossible by an emergency declaration of the New York City Department of Buildings issued after the parties entered into the stipulation but before landlords' time to perform their obligations under the stipulation expired requiring the building in which the apartment was situated to be demolished.

We have considered and rejected tenant's remaining contention.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2010