Bank of N.Y. v Betancourt

[*1] Bank of N.Y. v Betancourt 2012 NY Slip Op 50397(U) Decided on March 2, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2254 N C.

Bank of New York as Trustee for the Benefit of CWABS, INC. Asset-Backed Certificates, Series 2006-26, Respondent,

against

Jessica Betancourt, KRISTINA DUPPS, LUCAS DUPPS and MARGARET KARASZEK, Occupants, -and- MICHAEL OSTROWSKI, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered August 4, 2010. The order, insofar as appealed from, denied Michael Ostrowski's motion to vacate so much of a final judgment and warrant as was against him and to dismiss so much of the petition as was against him or, in the alternative, to restore the matter to the calendar.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and Michael Ostrowski's motion is granted to the extent of vacating so much of the final judgment and warrant as is against him and restoring to the calendar so much of the petition as is against [*2]him.

Landlord purchased the subject property at a foreclosure sale and thereafter commenced this summary proceeding pursuant to RPAPL 713 (5) against Michael Ostrowski, originally sued herein as "John Doe," and several other individuals residing at the premises. An affidavit of service indicates that the notice of petition and petition were served at the premises upon "John Doe" and other named individuals. Ostrowski appeared in court on January 14, 2009 and requested an adjournment to obtain counsel. He did not file an answer. On March 3, 2010, a stipulation of settlement was executed by landlord's attorney and Michael Aronow, an attorney purportedly representing all the respondents. A final judgment of possession was entered pursuant to the stipulation of settlement, and the warrant of eviction was stayed until June 3, 2010. By order to show cause dated June 3, 2010, Ostrowski moved to, in effect, vacate so much of the final judgment and warrant as is against him and to dismiss so much of the petition as is against him or, in the alternative, to restore to the calendar so much of the petition as is against him. Ostrowski alleged in his supporting affidavit that Aronow had not been authorized to enter into the stipulation on his behalf since he had not hired Aronow to represent him. Aronow alleged in his supporting affirmation that he had not been retained by Ostrowski to represent him in this proceeding. The District Court denied Ostrowski's motion.

The issue on appeal is whether the attorney who entered into the stipulation on behalf of Ostrowski had actual or apparent authority to do so (see Hallock v State of New York, 64 NY2d 224 [1984]). Here, Ostrowski established, and it is not disputed, that he had not expressly authorized the attorney to settle this proceeding on his behalf. In addition, landlord failed to satisfy its burden of showing that the attorney had the apparent authority to enter into the stipulation of settlement on behalf of Ostrowski (see Nash v Y & T Distribs., 207 AD2d 779 [1994]). Moreover, there was no showing that Ostrowski had ratified the settlement agreement (see Lindenbaum v Alban Post Prop. Assoc., 297 AD2d 661 [2002]). Consequently Ostrowski's motion should have been granted. However, we note that, in view of our determination that Aronow did not represent Ostrowski, Ostrowski was in default for failing to appear on the adjourned date, at which time the stipulation of settlement was executed by the other parties. Thus, landlord, may, if it be so advised, move for the entry of a default final judgment against Ostrowski based on his failure to appear on the adjourned date.

Accordingly, the order, insofar as appealed from, is reversed and Michael Ostrowski's motion is granted to the extent of vacating so much of the final judgment and warrant as is against him and restoring to the calendar so much of the petition as is against him.

Molia and Iannacci, JJ., concur.

Nicolai, P.J., taking no part.