Wira Assoc. v Easy

[*1] Wira Assoc. v Easy 2015 NY Slip Op 51203(U) Decided on August 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-2025 K C

Wira Associates, Respondent, August 3, 2015

against

Mitzy Easy, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated September 23, 2013. The order denied tenant's motion to, in effect, vacate a final judgment and warrant, and to restore the proceeding to the trial calendar in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this nonpayment proceeding, tenant entered into a stipulation pursuant to which a final judgment would be entered in landlord's favor, a warrant would issue forthwith and be stayed pending a payment of $7,576.88 by May 16, 2013, access would be provided for repairs on specified dates, and landlord would complete repairs as required by law by May 16, 2013. Tenant moved several times, by order to show cause, to, in effect, vacate the final judgment and warrant and restore the proceeding to the trial calendar. Pursuant to a second stipulation and several orders, the warrant was conditionally stayed. After defaulting under the terms of these orders and the stipulation, tenant, on September 13, 2013, moved again to, in effect, vacate the final judgment and warrant and to restore the proceeding to the trial calendar, alleging that she had $2,000 at that time. In the order appealed from, the Civil Court denied tenant's motion, noting that her arrears were $4,366 and that she was offering to pay only $3,100.

Enforcement of a stipulation remains subject to the supervision of the courts (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]), and courts may relieve a party from the consequences of strict enforcement of a stipulation when it would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see e.g. Weitz v Murphy, 241 AD2d 547 [1997]; Bank of NY v Forlini, 220 AD2d 377 [1995]; Hyman Embroidery Works v Action House, 89 AD2d 515 [1982]). Such relief is appropriate where a party has substantially complied with the stipulation and where the default is de minimis (see e.g. Winthrop Realty, LLC v Menal, 21 Misc 3d 141[A], 2008 NY Slip Op 52383[U] [App Term, 2d & 11th Jud Dists 2008]; J & H Mgt. Corp. v W.W.R.S Automotive Inc., 7 Misc 3d 134[A], 2005 NY Slip Op 50742[U] [App Term, 2d & 11th Jud Dists 2005]; AMA Realty v Farfan, 4 Misc 3d 131[A], 2004 NY Slip Op 50702[U] [App Term, 2d & 11th Jud Dists 2004]). Here, tenant has not substantially complied with the stipulation (see 368 Chauncey Ave. Trust v Whitaker, 28 Misc 3d 130[A], 2010 NY Slip Op 51254[U] [App Term, 2d, 11th & 13th Jud [*2]Dists 2010]).

Furthermore, to the extent that tenant argues on appeal that she should be relieved of her obligation to make payments under the stipulation because landlord failed to make repairs, we note that tenant never alleged that she had provided access for landlord to make repairs in compliance with the stipulations and orders, and, in any event, tenant's obligation to pay the arrears was not made dependent on landlord's making the repairs (see Lafrance Leasing v Shepherd, 193 Misc 2d 665 [App Term, 2d & 11th Jud Dists 2002]).

Accordingly, the order is affirmed.

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

Decision Date: August 03, 2015