Rufai v Providence

[*1] Rufai v Providence 2010 NY Slip Op 51353(U) [28 Misc 3d 134(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1023 K C.

Alaba A. Rufai, Appellant,

against

Petra Providence and HANK PROVIDENCE, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 8, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed without costs, the action is reinstated, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

In this small claims action, plaintiff seeks to recover from defendants, his former tenants, arrears in rent in the sum of $3,600, and three months of use and occupancy (U & O) in the sum of $1,800, owed pursuant to a stipulation of settlement entered into in a previous summary proceeding. In the prior summary proceeding, the parties had agreed, in a stipulation of settlement dated May 14, 2007, that the total arrears owed to plaintiff as of the date of the stipulation amounted to $4,800; that, in consideration of the conversion of the proceeding from a nonpayment proceeding to a holdover proceeding, plaintiff would waive $1,200 of the arrears; and that defendants would pay the balance of the arrears of $3,600 to plaintiff by May 22, 2007. The stipulation further provided that execution of the warrant was stayed until August 31, 2007 to enable defendants to vacate the premises; that, as a condition of remaining in the premises, defendants would pay monthly U & O of $600 for June, July and August of 2007, and that if defendants failed to timely pay the monthly U & O of $600 for said months, execution of the warrant could be accelerated by plaintiff. After defendants failed to make the payment of $3,600 as well as the U & O payments of $600 for June and July, plaintiff moved to vacate the stay of execution of the warrant, and the warrant was ultimately executed on August 9, 2007.

At the trial of the instant small claims action, defendants acknowledged that they did not pay the amounts agreed to in the stipulation, but asserted that plaintiff was not the owner of the [*2]premises. Moreover, they stated that they had moved out in the middle of July 2007. Following the trial, the Civil Court dismissed the action.

Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Stipulations of settlement are binding contracts and are not "lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230 [1984]). A party will be relieved of the consequences of a stipulation made during litigation "[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident" (id.). No such cause was shown here. We note that, in the summary proceeding, defendants did not seek to vacate the stipulation based on plaintiff's lack of standing to maintain said proceeding. Nor in the instant action did they assert a counterclaim seeking to invalidate the stipulation. In any event, since defendants knowingly entered into the stipulation of settlement, they waived any objection to plaintiff's standing (see Citi Dev. & Mgt. Inc. v Tirado, 15 Misc 3d 138[A], 2007 NY Slip Op 50938[U] [App Term, 2d & 11th Jud Dists 2007]; Daley v Billinghurst, 5 Misc 3d 138[A], 2004 NY Slip Op 51621[U] [App Term, 2d & 11th Jud Dists 2004]; see also Cortazzo v Reynolds, 149 Misc 2d 210 [App Term, 2d & 11th Jud Dists 1991]).

As defendants admitted that they failed to comply with the provision of the stipulation requiring them to pay $3,600 by May 22, 2007, plaintiff was entitled to recover that amount. Defendants are also liable for U & O of $600 for the month of June 2007, and continuing until the date that they surrendered possession (see Peat v Dorilas, 22 Misc 3d 142[A], 2009 NY Slip Op 50457[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Wahl v Warren, 19 Misc 3d 130[A], 2008 NY Slip Op 50537[U] [App Term, 9th & 10th Jud Dists 2008]). Although defendants admitted that they did not pay any of the stipulated monthly amounts of U & O of $600, there remains an issue as to precisely when defendants surrendered possession of the premises. Accordingly, the judgment is reversed, the action is reinstated and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010