Loscalzo v Rodriguez

[*1] Loscalzo v Rodriguez 2014 NY Slip Op 50799(U) Decided on May 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MARANO and GARGUILO, JJ.
2011-1356 S C

Laurence Loscalzo, Respondent,

against

Melina Rodriguez, Appellant.

Consolidated appeal from orders of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 21, 2011 and December 17, 2012, respectively. The order dated April 21, 2011 denied a motion by appellant to, in effect, vacate a stipulation of settlement and the final judgment entered pursuant thereto in a nonpayment summary proceeding. The order dated December 17, 2012 denied appellant's motion for, in effect, leave to renew or reargue her prior motion.

ORDERED that the order dated April 21, 2011 is reversed, without costs, appellant's motion to, in effect, vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted, and the matter is remitted to the District Court for all further proceedings; and it is further,

ORDERED that the appeal from the order dated December 17, 2012 is dismissed as moot.

In November 2010, landlord commenced this nonpayment proceeding against appellant as the sole respondent, seeking possession and the sum of $35,843, including arrears from December 2009, alleging that appellant had entered into a lease with landlord and had agreed to pay monthly rent of $2,650. The parties entered into a stipulation of settlement pursuant to which appellant agreed, among other things, to pay arrears of $21,444.80. She subsequently moved to, in effect, vacate the stipulation and the final judgment entered pursuant thereto. At a hearing on her motion, appellant testified, among other things, that she was not the tenant of record; that her share of the monthly rent was only $825; that she would give her share of the rent to the tenant of record, who would pay landlord; and that there was a third tenant whose share of the monthly rent was $1,000. The third tenant testified that she would pay her share of the rent directly to landlord, and money order receipts supporting that claim were entered into evidence. Appellant also introduced into evidence a three-day rent demand, signed by landlord, dated January 11, 2011, and addressed to the individual whom appellant identified as the tenant of record. It demanded monthly rent payments of $2,650 for July 2010 to December 2010, which overlaps with the time period covered by this proceeding by five months.

We find that appellant made a prima facie showing that she was not the tenant of record for at least the period from July 2010 to December 2010, and that the stipulated sum was in excess of any amount that might be due from her. Landlord failed to rebut that showing. Consequently, the stipulation should be vacated as inadvisably entered into (see Matter of [*2]Frutiger, 29 NY2d 143 [1971]; PC 999 High St. Corp. v Blackburn, 27 Misc 3d 144[A], 2010 NY Slip Op 51104[U]; [App Term, 9th & 10th Jud Dists 2010]; Third F.G.P. v Babalola, NYLJ, Apr. 28, 1992 [App Term, 2d & 11th Jud Dists]).

According, the order dated April 21, 2011 is reversed, appellant's motion to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted, and the matter is remitted to the District Court for all further proceedings.

Nicolai, P.J., Marano and Garguilo, JJ., concur.

Decision Date: May 07, 2014