Eastside NYC Corp. v Olmedo
Annotate this CaseDecided on September 16, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570603/09.
Eastside NYC Corp., Petitioner-Landlord-Appellant,
against
Mario Olmedo and Nelly Bucheli, Respondents-Tenants-Respondents.
Landlord appeals from an order of the Civil Court of the City of New York, New York
County (Joseph E. Capella, J.), dated March 4, 2009, which granted tenants' motion to vacate a
stipulation of settlement, final judgment and warrant of eviction, and sua sponte, dismissed the
petition in a nonpayment summary proceeding.
Per Curiam.
Order (Joseph E. Capella, J.), dated March 4, 2009, modified by reinstating the nonpayment petition and the default final judgment previously entered on the petition; as modified, order affirmed, without costs.
Petitioner-landlord commenced this nonpayment summary proceeding against "John" and "Jane Doe" in June 2008. A default final judgment was entered shortly thereafter awarding possession of the subject apartment premises to landlord. Respondents-tenants, who were evicted from the apartment pursuant to the default final judgment, moved to vacate their default. The motion to vacate the default final judgment was never adjudicated, since, on September 29, 2008, landlord and tenants entered into a two-attorney stipulation vacating the default final judgment, making tenants parties to this proceeding, and restoring them to possession of the apartment. Pursuant to the stipulation, a new final judgment was entered in landlord's favor and a warrant of eviction was issued with execution thereon stayed until November 30, 2009. Tenants were required to pay $850 per month in "use and occupancy" between October 2008 and November 2009, and landlord was allowed to execute on the warrant in the event of "default of any payment." In early January 2009, tenants were served with a notice of eviction apparently since landlord asserted that tenants failed to comply with the payment provisions of the stipulation —- and moved to vacate the stipulation. Civil Court granted tenants' motion to vacate the stipulation and, sua sponte, dismissed the nonpayment petition.
Civil Court providently exercised its discretion in vacating the stipulation of settlement, since it violated well-established public policy. Specifically, the stipulation contained no [*2]provision converting this nonpayment proceeding into a holdover proceeding (see generally Corbin v Briley, 192 Misc 2d 503 [2002]; cf. Soliven v Olawoyin, 13 Misc 3d 117 [2006]), yet afforded landlord the ability to evict tenants merely upon the failure to make future payments (see generally 141 East 3rd Street Co. v Munoz, NYLJ Apr. 24, 1990, at 22, col 2 [App Term, 1st Dept]; Ruppert House Co. v Altmann, 127 Misc 2d 115 [1985]). Notably, the stipulation does not indicate that tenants were permitted to assert the affirmative defense of the warranty of habitability as to future payments (see Ruppert House Co., supra).
Since tenants did not seek dismissal of the nonpayment petition (or establish their entitlement to such relief) on their motion to vacate the stipulation of settlement, Civil Court should not have dismissed the petition. Therefore, upon vacatur of the stipulation pursuant to which the prior default final judgment was vacated and tenants were restored to possession the prior default final judgment is reinstated. We stay execution of any warrant of eviction issued based on the default final judgment for 60 days from service of a copy of this order with notice of entry to permit tenants, if so advised, to renew their motion to vacate the default final judgment.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 16, 2010
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