New York City Hous. Auth. v Jackson

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[*1] New York City Hous. Auth. v Jackson 2006 NY Slip Op 52265(U) [13 Misc 3d 141(A)] Decided on November 17, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2006
2005-1082 Q C.

New York City Housing Authority (SOUTH JAMAICA HOUSES), Respondent,


Thomas Jackson, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated January 27, 2005. The order denied occupant's motion seeking, inter alia, to vacate a stipulation settling this licensee summary proceeding, and the final judgment and warrant entered and issued pursuant to the stipulation.

Order modified by providing that the branch of occupant's motion seeking to vacate the stipulation, final judgment and warrant is granted and matter remanded for all further proceedings; as so modified, affirmed without costs.

In this proceeding by the New York City Housing Authority to remove an occupant on the ground that his license to remain in the premises expired on the death
of his mother, the former tenant of record (RPAPL 713 [7]), a guardian ad litem (GAL) was appointed for occupant by the court upon application of Protective Services for Adults (PSA). Subsequently, the GAL entered into a stipulation on occupant's behalf in which it was agreed that landlord would have a final judgment and occupant would be given time to vacate the apartment. Dissatisfied with this result, and believing that occupant was in need of a Mental Hygiene Law article 81 guardian, PSA commenced a Supreme Court proceeding for the appointment of such a guardian, and Self Help Community Services, Inc. (Self Help) was appointed as occupant's guardian. Thereafter, Self Help moved to, among other things, vacate the stipulation of settlement as inadvisedly entered into, arguing, inter alia, that occupant was entitled to succeed to [*2]the apartment because landlord was aware of his presence in the apartment and took no action against him and that, in view of his disability and his mother's illness, the failure to obtain landlord's written approval for occupant to reside in the apartment should not be charged against him (see Chavez v Hernandez, 22 AD3d 408 [2005]).

In our view, Self Help's application to vacate the stipulation should have been granted in view of its showing that the GAL, in entering into the stipulation, inadvisedly waived occupant's arguably meritorious defenses to this proceeding (see Matter of Frutiger, 29 NY2d 143 [1971]). In light of the court's "continuing obligation to supervise the guardian ad litem's work" (Neilson v Colgate-Palmolive Co., 199 F3d 642, 652 [2d Cir 1999]), its ultimate responsibility for the GAL's determinations (Noe v True, 507 F2d 9, 12 [6th Cir 1974]), and its responsibility, in particular, for overseeing settlements of proceedings involving those who are unable to defend themselves (see e.g. Bose v Wehrli, 186 Misc 325 [1945]), and in view of the existence of arguably meritorious defenses to this proceeding, we vacate the stipulation as inadvisedly entered into and remand the matter for all further proceedings.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order in the following memorandum:

In my view, occupant offers no valid basis for vacating the stipulation of settlement. Accordingly, I respectfully dissent and would vote to affirm.

Petitioner New York City Housing Authority (Housing Authority) commenced this holdover proceeding to remove occupant in January 2001. The following month, Protective Services for Adults (PSA) moved for the appointment of a guardian ad litem based on a psychiatric evaluation of occupant. By order dated March 12, 2001, the court below granted the motion and appointed an experienced attorney as guardian ad litem. On March 26, 2001, the guardian ad litem negotiated a binding stipulation of settlement on occupant's behalf, whereby occupant agreed to, among other things, a final judgment of possession in favor of the Housing Authority and a stay of execution of the warrant until September 30, 2001.

After the expiration of the stay, PSA petitioned in Supreme Court for appointment of a guardian pursuant to Mental Hygiene Law article 81 and obtained another stay of eviction. On May 8, 2002, Supreme Court granted the petition, appointed Self Help as guardian of occupant's personal needs and property management, and extended the stay of eviction for 90 days from the issuance of the commission to the guardian.

Almost two years after receiving its commission, Self Help moved to vacate the stipulation and final judgment, and sought a stay to permit it to file an action to compel the Housing Authority to issue occupant a lease. The court below denied the motion, concluding that [*3]there was no basis to vacate the so-ordered stipulation. I agree.

Stipulations of settlement "are favored by the courts and are not lightly cast aside" (Hallock v State of New York, 64 NY2d 224 [1984] [citations omitted]). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequence of a stipulation made during litigation" (id.).

Here, occupant offered no valid excuse for his failure to honor the terms of the stipulation, nor did he allege any basis for invalidating the stipulation. With the benefit of a seasoned attorney as guardian ad litem, occupant entered into a binding stipulation of settlement whereby he agreed to vacate the premises by September 30, 2001. Nothing in the record suggests that the stipulation was coerced or the product of fraud, collusion, mistake or accident. Nevertheless, the majority chooses to vacate the stipulation on the ground that the guardian ad litem "inadvisedly waived occupant's arguably meritorious defenses." I disagree.

In my opinion, the guardian ad litem an attorney experienced in Housing Court matters competently protected occupant's rights by securing a six-month stay of eviction in an otherwise indefensible case. Occupant was never a tenant, nor did he present proof demonstrating that the Housing Authority knew of and implicitly approved of his residency. Occupant resided with his mother the tenant of record only one month before her death and made no attempt to place his name on the lease. Once the tenant of record had died, the tenancy terminated and occupant's status was nothing more than a licensee. Unable to make a "reasonable showing" that he was in the apartment with the Housing Authority's knowledge or permission, and having failed to pay use and occupancy after his mother's death, occupant was not entitled to a grievance hearing on whether he had succession rights (see Henderson v Popolizio, 76 NY2d 972, 974 [1990]; New York City Housing Auth. v Covington, 12 Misc 3d 141[A], 2006 NY Slip Op 51372[U] [App Term, 2nd & 11th Jud Dists]). In these circumstances, it cannot be said that the guardian ad litem acted imprudently in advising occupant to enter into the stipulation.

To the contrary, it is Self Help which acted in derogation of its fiduciary obligation as guardian. For almost two years following its appointment, Self Help neither objected to the so-ordered stipulation, nor did it resolve its ward's living situation. Instead, it waited until long after the expiration of the stay of eviction to rush into court and obtain yet another stay of eviction. Other than occupant's incapacity and his bald assertion that the Housing Authority was aware of his presence, Self Help cites to nothing to justify placing occupant ahead of the line of the thousands of eligible individuals awaiting public housing (see Henderson v Popolizio, 76 NY2d at 974). Indeed, implicit in the majority's opinion is that the rule of law must yield to an incapacitated individual's interest in avoiding homelessness. While I, too, am sympathetic to occupant's plight, I can find no principled basis for invalidating the so-ordered stipulation.

Accordingly, I would vote to affirm the order below.
Decision Date: November 17, 2006