Tormos v Roinestad

[*1] Tormos v Roinestad 2005 NY Slip Op 52090(U) [10 Misc 3d 134(A)] Decided on December 12, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ.
2005-281 K C

Kathryn Tormos, Appellant,

against

Gustav Roinestad, STEVEN ROINESTAD, MILDRED REISTAD, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered on September 13, 2004. The order, upon reargument, denied plaintiff's motion to vacate an order which granted defendants' motion for summary judgment on default.

Order unanimously affirmed without costs.

Upon a review of the record in this pro se action by a former tenant for breach of a lease, we find that plaintiff, in moving to vacate her default, did not establish a meritorious claim (CPLR 5015 [a] [1]). In a prior summary proceeding, in which defendants sought to recover the premises based on owner occupancy, plaintiff entered into a written stipulation wherein, in return for consideration, she relinquished all of her claims against defendants and her right to possession of the premises. This stipulation has not been set aside either in the summary proceeding or in a plenary action for such relief (see generally 105 NY Jur 2d, Trial § 276). In any event, although plaintiff claims she entered into the stipulation under duress, she fails to establish that there was a wrongful threat which precluded her from exercising her free will (see Desantis v Ariens Co., 17 AD3d 311 [2005]).

We note that defendants' failure to occupy the premises for the full three years following the final judgment of possession did not give rise to a cause of action under the Rent [*2]Stabilization Code in favor of the plaintiff (Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [5]; see Loza v Sottile, 182 AD2d 641 [1982]).
Decision Date: December 12, 2005