100 Queens Blvd. Assoc., LLC v G&C Coffee Shop

[*1] 100 Queens Blvd. Assoc., LLC v G&C Coffee Shop 2007 NY Slip Op 51073(U) [15 Misc 3d 141(A)] Decided on May 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-661 Q C.

100 Queens Boulevard Associates, LLC, Respondent,

against

G&C Coffee Shop a/k/a G&C Coffee Shop, Inc. d/b/a Forest Hills Coffee Shop, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), dated February 7, 2006. The order denied tenant's motion to be restored to possession.

Order affirmed without costs.

The instant commercial holdover proceeding was settled pursuant to a court- ordered stipulation dated November 16, 2005. The stipulation provided, inter alia, for a final judgment of possession in favor of landlord and issuance of a warrant of eviction. Execution of the warrant was stayed conditioned upon tenant's compliance with various provisions set forth in the stipulation by specified dates. The stipulation further stated that in the event of a default on any provision, the warrant of eviction could be executedafter service of a five-day notice to cure and a concurrent six-day marshal's notice of eviction. Tenant was afforded the opportunity to cure within the five-day period provided that, as part of the cure, in addition to curing the underlying default, it reimbursed landlord $100 for each notice to cure. The stipulation also provided that any default would be deemed a "material default" and that "time is of the essence."

Within a short time after entering into the stipulation, tenant defaulted on three occasions, each default triggering landlord's service of the requisite notice to cure and marshal's notice. On each occasion, tenant cured the underlying default but did not pay landlord the $100. Subsequently, tenant reimbursed landlord the $300 only after landlord advised tenant that it would execute on the warrant of eviction if same were not promptly paid. Tenant defaulted a fourth time by failing to pay real estate taxes when due, causing landlord to serve another notice to cure. Tenant paid the taxes within the time to cure but again failed to pay the additional $100. On January 31, 2006, tenant was evicted by reason of said failure. Tenant thereafter moved to be [*2]restored to possession, which motion was denied.

Stipulations of settlement are essentially contracts to be construed in accordance with contract principles (Serna v Pergament Distribs., 182 AD2d 985, 986 [1992]) and will not be set aside or modified absent a showing of fraud, collusion, mistake, accident or good cause (Matter of Frutiger, 29 NY2d 143, 149-150 [1971]). In the case at bar, there was no showing of fraud, collusion, mistake or accident. In addition, when viewed in light of the totality of the circumstances, it cannot be said that there existed good cause to relieve tenant from its default. Although tenant's breach in failing to pay the $100 as part of the cure was itself relatively minor, it was a recurrence of prior breaches to which landlord had registered its objection. Moreover, the parties had specifically agreed that any breach would be deemed material. In these circumstances, the court is required to enforce the negotiated terms of the agreement and may not substitute its own judgment for that of the parties (see e.g. 1029 Sixth, LLC v Riniv Corp., 9 AD3d 142 [2004]; see also Vermont Teddy Bear Co. v 538 Madison Realty, 1 NY3d 470, 475 [2004]). Thus, the allegations contained in tenant's motion papers to be restored to possession failed to establish that tenant was wrongfully evicted. We note that since tenant remained in default, the marshal's failure, if any, to properly serve the notice of eviction afforded no basis for granting tenant's motion to be restored (see Graham v Moore, 10 Misc 3d 133[A], 2005 NY Slip Op 52087[U] [App Term, 2d & 11th Jud Dists]; 601 Realty v Osman, NYLJ, Apr. 6, 1989 [App Term, 2d & 11th Jud Dists]).
Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 24, 2007