135 Amersfort Assoc., LLC v Jones
Annotate this CaseDecided on August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2014-1000 K C
135 Amersfort Assoc., LLC, Appellant, August 12, 2015
against
Janina Jones, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kimberly Slade Moser, J.), dated December 3, 2013. The order granted tenant's motion to stay the execution of a warrant, issued pursuant to a stipulation of settlement in a holdover summary proceeding, and modified the terms of the stipulation by, among other things, changing the rent payment due date.
ORDERED that the order is modified by providing that so much of the order as modified the terms of the stipulation by, among other things, changing the rent payment due date is stricken; as so modified, the order is affirmed, without costs.
In this holdover proceeding based on chronic nonpayment and chronic late payment, the parties entered into a stipulation of settlement pursuant to which a final judgment of possession was to be entered and a warrant of eviction issued, with execution of the warrant to be stayed provided tenant complied with the terms of the stipulation, which imposed a probationary period. Following tenant's default, the parties entered into another stipulation, which created a new probationary period and which provided that since "time being of the essence," "[a]ny default shall be deemed material." Upon tenant's payment of November 2013 rent on the 11th of the month instead of on the 7th of the month as provided for in the superseding stipulation, landlord sought to execute the warrant of eviction, and tenant moved to stay the execution of the warrant. By order dated December 3, 2013, the Civil Court granted tenant's motion. The court also modified the terms of the stipulation by, among other things, changing the rent payment due date from the 7th of each month to the 11th.
It is well settled that stipulations of settlement are independent contracts, are favored by the courts, 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 Galasso, 35 NY2d 319, 321 [1974]; Matter of Frutiger, 29 NY2d 143 [1971]). Nevertheless, enforcement of a stipulation remains subject to the supervision of the court (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]), which is not necessarily bound by language in the stipulation stating that any default shall be deemed material, and which "always retains the power to vacate a warrant of eviction prior to its execution for good cause shown' " (Harvey 1390 LLC v Bodenheim, 96 AD3d 664, 664 [2012], quoting RPAPL 749 [3]; see also Brigham Park Co-Operative Apts., Sec #3, Inc. v [*2]Rock, 42 Misc 3d 141[A], 2014 NY Sip Op 50220[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; 123 E. 92nd Realty, LLC v Thomas, 38 Misc 3d 141[A], 2013 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).
The Civil Court implicitly found that the averments in support of the motion to stay the execution of the warrant of eviction were sufficient to show good cause inasmuch as the affiant, tenant's fiancé, stated that he had complied with the stipulation for 21 months, and that landlord had been provided with the November 2013 rent on November 11th, a Monday, instead of November 7th, a Thursday, because he did not get paid until November 9th, a Saturday. Consequently, we find that the Civil Court acted well within its discretion in granting tenant's motion to stay the execution of the warrant. The aforementioned averments, however, did not provide a basis upon which the Civil Court could change the terms of the stipulation.
Accordingly, the order is modified by providing that so much of the order as modified the terms of the stipulation by, among other things, changing the rent payment due date is stricken.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: August 12, 2015
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