Austin Clayton Holdings, LLC v Taylor

[*1] Austin Clayton Holdings, LLC v Taylor 2015 NY Slip Op 51059(U) Decided on July 7, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2014-777 K C

Austin Clayton Holdings, LLC, Respondent, July 7, 2015

against

Johnnie Mae Taylor and ELESHIA FERN, Tenants, -and- FTEMA RAYSOR, Appellant.

Appeals from orders of the Civil Court of the City of New York, Kings County, dated November 21, 2013 (Kimberly Slade Moser, J.) and April 8, 2014 (Kevin C. McClanahan, J.). The order dated November 21, 2013 denied Ftema Raysor's motion to, in effect, stay the execution of a warrant of eviction in a nonpayment summary proceeding. The order dated April 8, 2014 denied Ftema Raysor's motion to be restored to possession.

ORDERED that the appeal from the order dated November 21, 2013 is dismissed as moot; and it is further,

ORDERED that the order dated April 8, 2014 is affirmed, without costs.

In thisnonpayment summary proceeding, tenants Johnnie Mae Taylor and Eleshia Fern defaulted, and landlord and Ftema Raysor (occupant) entered into a so-ordered stipulation in which it was agreed that landlord would be awarded a final judgment as against occupant with issuance of the warrant stayed for occupant to pay the arrears by August 31, 2013. Occupant did not pay the arrears by that date and subsequently brought several motions to, in effect, stay the execution of the warrant. By order dated November 21, 2013, a motion by occupant to, in effect, stay the execution of the warrant was denied on the ground that, among other things, occupant did not have the full amount of the arrears owed. Occupant was subsequently evicted, and then made several more motions to be restored to possession. By order dated April 8, 2014, a motion by occupant to be restored to possession was denied, as occupant had shown no present or future ability to pay the balance. Occupant appeals from the November 21, 2013 and April 8, 2014 orders.

As the warrant has been executed, the appeal from the November 21, 2013 order, which denied occupant's motion to, in effect, stay the execution of the warrant, is moot. Accordingly, the appeal from that order is dismissed.

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, [*2]29 NY2d 143 [1971]). Occupant has never demonstrated any such ground to invalidate the stipulation, and as occupant's multiple defaults under that stipulation were not de minimis, inadvertent or promptly cured, occupant showed no proper basis to be restored to possession (see Davern Realty Corp. v Vaughn, 161 Misc 2d 550 [App Term, 2d & 11th Jud Dists 1994]; see also 195 St, LLC v Jones, 30 Misc 3d 130[A], 2010 NY Slip Op 52318[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sherwood Complex, LLC v Dunn, 24 Misc 3d 136[A], 2009 NY Slip Op 51497[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 603-607 Realty Assoc. v Gachelin, 2003 NY Slip Op 51105[U] [App Term, 2d & 11th Jud Dists 2003]).

Accordingly, the order dated April 8, 2014 is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 07, 2015