Monroe Place Assoc. v Arango

[*1] Monroe Place Assoc. v Arango 2010 NY Slip Op 51251(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1063 K C.

Monroe Place Associates, Respondent,

against

Luz Gabriella Arango, Appellant.

Appeals from orders of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated March 12, 2009 and May 13, 2009, respectively. The order dated March 12, 2009 denied tenant's motion to stay execution of the warrant. The order dated May 13, 2009, insofar as appealed from, upon, in effect, granting the branch of tenant's motion seeking leave to reargue the prior motion, adhered to the prior determination, and denied the branch of tenant's motion seeking to vacate the stipulation of settlement and, in effect, the final judgment entered pursuant thereto.

ORDERED that the appeal from the order dated March 12, 2009 is dismissed on the ground that that order was superseded by the order dated May 13, 2009; and it is further,

ORDERED that the order dated May 13, 2009, insofar as appealed from, is affirmed without costs.

In this chronic-nonpayment holdover proceeding, landlord and tenant, both represented by counsel, entered into a probationary stipulation of settlement providing for the entry of a final judgment in favor of landlord and requiring tenant to make timely payments of use and occupancy as well as monthly installment payments of rental arrears. The stipulation further provided, among other things, that no default in payment during the probationary period would be considered de minimis; that all payment dates were dates by which landlord must actually receive payment; that there would be no cure period if tenant did not establish timely payments pursuant to the stipulation; and that, in the event of a default, the warrant would execute after service of a five-day notice of default. [*2]

It is undisputed that tenant's first payment due under the stipulation was returned for insufficient funds. Upon being served with a marshal's notice, tenant moved to stay execution of the warrant, which motion was denied by the Civil Court. Tenant thereafter moved for leave to reargue the motion and to vacate the stipulation of settlement and, in effect, the final judgment entered pursuant to the stipulation. The Civil Court, in effect, granted the branch of tenant's motion seeking leave to reargue the prior motion, adhered to its prior determination, and denied the branch of tenant's motion seeking to vacate the stipulation of settlement and final judgment.

Tenant's argument that, because the stipulation required landlord to provide a five-day notice of default prior to execution of the warrant she was entitled to a cure period in the event of any default, is contradicted by the clear language of the stipulation that there would be no opportunity to cure if tenant did not establish timely payments pursuant to the agreement. As tenant defaulted on the first payment, she has not established entitlement to a cure period.

Tenant further argues that because landlord had served her with a predicate notice to cure, the "notice of default" required by the stipulation must be viewed as a notice to cure. At the outset, we note that landlord did not serve a predicate notice to cure; instead, landlord served only a predicate notice of default that contained no cure language. Indeed, because a chronic-nonpayment breach of the lease is not susceptible to cure, landlord was not required to serve a notice to cure (see Herald Towers, LLC. v Perry, 2003 NY Slip Op 50564[U] [App Term, 1st Dept 2003]; 3363 Sedgwick v Medina, 187 Misc 2d 421 [App Term, 1st Dept 2000]; Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620 [App Term, 1st Dept 2000]). In any event, the language of the stipulation providing that there shall be no cure period upon a default in any payments due thereunder is, as noted above, clear and unambiguous.

Contrary to tenant's further contention, RPAPL 753 (4) is not applicable to this proceeding (see e.g. 3363 Sedgwick, 187 Misc 2d 421; Fishel v Oakley, NYLJ, May 23, 1990 [App Term, 2d & 11th Jud Dists]).

With respect to the branch of tenant's motion seeking to vacate the stipulation of settlement and, in effect, the final judgment issued pursuant thereto, we note that settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see Hallock v State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]). Tenant set forth no such basis to invalidate the stipulation. Moreover, tenant's argument that defects in the petition require vacatur of the stipulation is unavailing as, by entering into the stipulation of settlement, tenant waived the alleged defects in the petition (see 2380-86 Grand Ave. Assoc., LLC v Ortega, 20 Misc 3d 135[A], 2008 NY Slip Op 51511[U] [App Term, 1st Dept 2008]).

Accordingly, the order dated May 13, 2009 is affirmed insofar as appealed from.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: July 16, 2010