Terrace v Avivi

[*1] Terrace v Avivi 2007 NY Slip Op 50893(U) [15 Misc 3d 137(A)] Decided on April 27, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., RIOS and BELEN, JJ
2006-472 K C.

Webster Terrace, Respondent,

against

Itzik Avivi, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), entered January 5, 2006. The order denied tenant's motion to vacate stipulations of settlement.

Order affirmed without costs.

In our view, tenant showed no good cause to vacate the three stipulations of settlement, two of which were entered into in open court following a thorough allocution. Tenant, who was represented by counsel, negotiated the binding stipulations in exchange for repeated stays of eviction. Under the first so-ordered stipulation, which was entered into on March 9, 2005, tenant agreed to convert the instant proceeding to
a holdover proceeding and to award landlord a final judgment of possession. In exchange, tenant was granted a stay of eviction until July 31, 2005 and landlord waived all rent owed. On August 29, 2005, tenant secured a second so-ordered stipulation, which reaffirmed the previous one and extended the stay of eviction to November 30, 2005, with landlord, again, waiving tenant's share of the rent. On November 2, 2005, tenant's attorney, acting on his client's behalf, entered into a third stipulation, obtaining yet another stay of eviction until December 31, 2005, with landlord continuing to waive tenant's rent up until that time.

Despite repeated stays of eviction and having resided in the premises rent-free over a nine-month period, tenant now claims, on appeal, that the stipulations should be vacated because, among other things, he is disabled and was advised by the Housing Department to withhold rent [*2]due to the condition of his apartment. Tenant further claims that he understood the March 9, 2005 stipulation as requiring all back rent to be paid, not waived, through the end of his lease in July 2005, and that he has paid all rent. Tenant's allegations are insufficient to vacate the stipulations.

It is well settled that stipulations of settlement "are favored by the courts and [are] not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230 [1984]). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (id.).

Here, no good cause exists for invalidating the stipulations. Tenant was afforded ample opportunity to consider each of the first two stipulations and entered into them freely and voluntarily. Tenant's allegation that he understood the March 9, 2005 stipulation as requiring all back rent to be paid, not waived, is belied by the record. After a thorough allocution by the court, tenant, with the benefit of counsel and a Hebrew interpreter, entered into the stipulation, which extended the stay of eviction and clearly waived landlord's claims for unpaid rent. Moreover, other than his self-serving allegation, tenant offered nothing to support his claim that all back rent had been paid. Having failed to show that the stipulations were coerced or the product of fraud, collusion, mistake or accident, tenant offers no basis for vacating the stipulations (see City of New York v 130/40 Essex St. Dev. Corp., 302 AD2d 292 [1st Dept 2003]).

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: April 27, 2007