DDEH 103 E 102 LLC v Jasabe

[*1] DDEH 103 E 102 LLC v Jasabe 2017 NY Slip Op 51322(U) Decided on October 5, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Gonzalez, JJ.
570777/16

DDEH 103 E 102 LLC, Petitioner-Landlord-Appellant,

against

Chris Jasabe and Mariela Salas, Respondents-Tenants-Respondents.

Landlord, as limited by its briefs, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated November 10, 2016, which conditionally granted tenants' post-eviction motion to vacate a so-ordered stipulation of settlement, final judgment and warrant of eviction, and to be restored to possession in a nonpayment summary proceeding.

Per Curiam.

Order (Jack Stoller, J.), dated November 10, 2016, reversed, with $10 costs, motion denied, and the stipulation of settlement, final judgment and warrant of eviction are reinstated.

Civil Court improvidently exercised its discretion in granting tenants' second application for post-eviction relief in this nonpayment proceeding. Notwithstanding the unregulated, short-term tenants' execution of a stipulation requiring payment of $8,175 arrears pursuant to a specified payment schedule, and the subsequent grant of several extensions of time, both before and after tenants' September 30, 2016 eviction, tenants were still unable to pay the accumulated arrears of some $18,000 owed through the November 2016 return date of their second post-eviction motion. Under the circumstances, tenants' motion to vacate the stipulation, judgment and warrant should have been denied (see Chelsea 19 Assoc. v James, 67 AD3d 601 [2009]).

The belated attempt by tenants' incoming counsel to inject an unpleaded rent forfeiture defense in the settled litigation by way of a (second) post-eviction motion does not provide a proper basis to vacate the stipulation (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Montgomery Trading LLC v Siegel, 25 Misc 3d 128[A], 2009 NY Slip Op 52075[U] [App Term, 1st Dept 2009]). Such defense does not implicate the court's subject matter jurisdiction and was waived by tenants when they executed the stipulation (see Matter of Meaders v Jones, 15 AD3d 490 [2005]; 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 05, 2017