J & H Mgt. Corp. v W.W.R.S Automotive Inc.
Annotate this CaseDecided on May 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: May 19, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT :PESCE, P.J., RIOS and BELEN, JJ.
2004-305 Q C
J & H MANAGEMENT CORP., Appellant,
against
W.W.R.S AUTOMOTIVE INC. d/b/a EVERYTHING AUTO REPAIR, Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.
Appeals by landlord from orders of the Civil Court, Queens County (D. Elliot, J.), entered June 28, 2002, granting a final judgment of possession in a commercial summary holdover proceeding and staying execution of the warrant of eviction, and from an order of the same court, entered January 12, 2003, which, inter alia, denied landlord's motion to vacate the stay of the warrant of eviction.
Orders unanimously affirmed without costs.
Within months of executing a 15-year lease with tenant for an automotive repair business, landlord served tenant a notice to cure alleging numerous violations of the lease, and of the premises' zoning variance as specified in a compliance order of the Board of Standards and Appeals (Board). The parties eventually executed a settlement stipulation which required modifications to the premises' structures and associated fixtures, some substantial, by dates certain. When tenant failed to fulfill all of the stipulation's terms, landlord commenced the [*2]instant action to recover possession, and after a hearing, the court below determined, in effect, that while tenant had substantially complied with the stipulation's terms, tenant failed to carry out all the modifications specified and thereby breached the stipulation. The court granted landlord possession and a warrant of eviction, but stayed enforcement to permit tenant to cure the remaining violations, to be confirmed by the court's own inspection of the premises. After said inspection, landlord moved to modify the June 28, 2002 order insofar as it stayed enforcement of the warrant of eviction, based on tenant's noncompliance therewith. On January 12, 2003, the court denied the motion and vacated the warrant of eviction based on the credible evidence of tenant's ultimate compliance with the stipulation's terms, the absence of prejudice to landlord in light of the improvements to the premises and an August 6, 2002 Board resolution to the effect that the compliance order had been withdrawn, and the inequitable and unjust result if tenant's investment and livelihood were forfeited. Landlord appeals both orders and we now affirm.
It is well settled that that a stipulation's enforcement remains "subject to the supervision of the courts" (Malvin v Schwartz 65 AD2d 769, affd 48 NY2d 693 [1978]) and that the courts may relieve a party from the consequences of enforcement where such "would be unjust or inequitable or permit the other party to gain an unconscionable advantage" (Bank of N.Y. v Forlini, 220 AD2d 377, 378 [1995]; see also Weitz v Murphy, 241 AD2d 547, 548 [1997]; Hyman Embroidery Works v Action House, 89 AD2d 515 [1982]; 40 Plus 53 61st Street Realty Corp. v Dalton, 2003 NY Slip Op 51159[U] [App Term, 2d & 11th Jud Dists]). The relief is appropriate upon a finding of "substantial compliance" with a stipulation (e.g. Rockaway One Co. v Williams, 3 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2004]; see also Lemish v East-West Renovating Co., 156 AD2d 313 [1st Dept 1989]; AMA Realty LLC v Farfan, 4 Misc 3d 131[A], 2004 NY Slip Op 50702[U] [App Term, 2d & 11th Jud Dists]; S & P Assocs. v Keenan, 2002 NY Slip Op 50324[U] [App Term, 1st Dept]). Indeed, in Forlini, the court noted that the courts are empowered to apply the relief "[u]nder almost any given state of facts," that is, whenever the stipulation's enforcement would be "unjust or inequitable" or afford the enforcing party an "unconscionable advantage" (Bank of N.Y. v Forlini, 220 AD2d at 378). Thus, the court below could impose the instant relief if any reasonable view of the facts below established tenant's "substantial compliance" with the stipulation's terms. It is further noted that the law abhors a forfeiture of a lease (Lake Anne Realty Corp. v Sibley, 154 AD2d 349, 351 [1989] ["(W)here . . . no substantial injury resulted to the landlord for the failure to comply strictly, the tenant should not be unduly penalized. A forfeiture of the lease herein, particularly after the tenant's [substantial] expenditure . . . for improvements, would be unduly harsh. . . . Where the covenants of lease are substantially performed and no substantial injury results to landlord from the failure to comply strictly, the tenant should not be subject to the severity of a forfeiture"]; see also J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 398 [1977]).
The record supports the court's determination that tenant had substantially complied with the stipulation's terms by curing most of the violations at considerable expense, which improvements substantially improved the leasehold's value and facilitated the premises' use as contemplated in the lease and zoning variance, and that tenant's efforts to cure the remaining violations were so well advanced as to
approximate full compliance. In light of the Board's subsequent withdrawal of the violations complaint and the completion of all repairs, the court properly denied the motion to vacate the June 28, 2002 order insofar as it stayed the warrant of eviction.
Decision Date: May 19, 2005
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