Clinton Hill Equities Group v Little

[*1] Clinton Hill Equities Group v Little 2007 NY Slip Op 51267(U) [16 Misc 3d 127(A)] Decided on June 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-719 K C.

Clinton Hill Equities Group, Respondent,

against

Iris Little a/k/a IRIS BLAKELY, Appellant, -and- FAYE BLAKELY, Undertenant-Appellant, -and- "JOHN DOE", Undertenant.

Appeal by tenant Iris Little and undertenant Faye Blakely from an order of the Civil Court of the City of New York, Kings County (Timmie E. Elsner, J.), dated March 6, 2006. The order denied a motion by Iris Little to vacate a stipulation of settlement and the final judgment entered pursuant thereto.

Appeal by undertenant Faye Blakely dismissed.

Order affirmed without costs.

In this holdover proceeding based on a claim of illegal sublet, tenant Iris Little and [*2]undertenant Faye Blakely, after defaulting in complying with landlord's discovery demand, stipulated, with the assistance of counsel, to surrender the apartment in return for a waiver of rental arrears. The stipulation was executed on January 12, 2005 and so ordered on June 21, 2005. By notice of motion dated December 30, 2005, long after she was evicted, tenant moved, with the assistance of new counsel, to vacate the stipulation and final judgment. By order dated March 6, 2006, tenant's motion was denied.

Contrary to tenant's contention, she has shown no sufficient basis, such as fraud, misrepresentation, duress or overreaching, for setting aside the stipulation (see Hallock v State of New York, 64 NY2d 224, 230 [1984]). Tenant's belated contention that, at the time she entered into the stipulation, she was in need of a guardian ad litem and incapable of adequately defending herself is not supported by sufficient proof and is, in any event, rebutted by the sworn averments of her former counsel, a certified court evaluator under article 81 of the Mental Hygiene Law and a licensed clinical social worker, that tenant was not incapable of adequately defending herself. In addition, tenant, at all relevant times, was advised and assisted by her sister, undertenant Faye Blakely, who co-signed the stipulation. Tenant's current counsel's allegation that her former counsel and landlord engaged in a fraudulent scheme intended to deprive her of her apartment is not supported by the record. Instead, the record indicates that tenant entered into the stipulation as a result of her decision and that of her sister not to comply with landlord's discovery demands, rather than as a result of any fraud or overreaching on the part of landlord. Thus, there is no basis to set aside the stipulation. We have examined tenant's other contentions and find them to be equally without merit.

The appeal by undertenant Faye Blakely is dismissed because Blakely is not aggrieved by the order denying tenant's motion to vacate the stipulation and final judgment since she did not join in tenant's motion (see Matter of Abraham S., 291 AD2d 452 [2002]). In any event, Blakely did not file a brief on appeal, or join in tenant's brief, and has thus failed to perfect her appeal.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 18, 2007