Santodonato v Voelker
Annotate this CaseDecided on March 25, 2008
District Court of Nassau County, First District
Giuseppe Santodonato, Petitioner(s)
against
Robert Voelker, Respondent(s)
SP 4569/07
Richard J. Sullivan, Attorney for Respondent-Tenant
Horing Welikson & Rosen, Attorneys for Petitioner-Landlord
Scott Fairgrieve, J.
By Order to Show Cause dated December 28, 2007, Movant-Tenant Robert Voelker moves for an order vacating and setting aside the judgment and warrant of eviction entered herein in favor of the Petitioner-Landlord, which motion is duly opposed.
The facts of this matter reveal that movant is a tenant under a lease from Petitioner-Landlord, who instituted a non-payment petition on September 7, 2007 for past due rent from February 1, 2007. The matter came on before this court on September 20, 2007, at which time the parties entered into a stipulation settling same. Under the terms of the stipulation, movant agreed to pay to respondent $11,000.00 in checks subject to collection on October 18, 2007, in the amount of $1,800 representing October rent and $500 of arrears, $500.00 on each of the following dates: November 18, 2007, December 18, 2007, January 18, 2008 and February 18, 2008 with the balance of $8,500 to be paid on March 18, 2008. The first payment of $1,800 due on October 18, 2007 was not made, nor was the October rent paid. The stipulation entered into by the parties, both of whom were represented by counsel, specifically stated:
1. The petition is hereby amended to included [sic] all rent through 10/14/07 and petitioner shall have a final judgment for all of the abovementioned rent in the sum of $11,000.
2. Issuance of the warrant of eviction shall be forthwith with execution thereof stayed to and until March 18, 2008, conditioned upon respondent's payment of arrears as follows: $1,800 by 10/18/07 (10/18 rent and 500 of arrears), $500 on 11/18/07, 12/18/07, 1/18/08 & 2/18/08. Balance of $8,500 to be paid on 3/18/08.
3. All of the above payments shall be in addition to the current monthly rent and additional rent, if any, which must be paid as the same becomes due and all payments made by the respondent shall be applied to current rent and additional rent, if any, first with the balance, if any, applied to arrears.
4. Upon completion of all payments required by this stipulation the Warrant and Judgment shall be vacated. [*2]
5. Upon default in the making of any of the payments required herein Warrant may execute.
6. Facsimile signature may be accepted as original.
On November 7, 2007, this Court issued its Judgment in favor of petitioner-landlord, which included a warrant of eviction to issue with no stay.
Nowhere in the stipulation entered into between the parties is their any requirement that the petitioner-landlord must give the movant-tenant any notice of his intention to vacate the agreed to stay of execution based upon the movant-tenant's non-performance. As indicated above, both parties were represented by counsel with regard to the preparation of the stipulation. If prior written notice of vacatur of the stay of execution upon tenant's non-performance was required, same would have been included in the settlement stipulation.
As stated in Tepper v. Tannenbaum, 83 AD2d 541, 441 NYS 2D 470 (1st Dept 1981):
Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. . . . and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced (Matter of New York, Lackawanna & Western R. R. Co., 98 NY 447, 453; see, also, Morse v Morse Dry Dock & Repair Co., 249 App Div 764; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2104.02).
See also Beaux Arts Realty II, LLC v. Council, 2001 WL 1602670, 2001 NY Slip Op 50019 (App Term, 1st Dept 2001) holding that no additional notice was required under the terms of the stipulation.
The stipulation in this case is not an unreasonable one. Nothing contained therein contravenes good morals or sound public policy, and movant is bound by same. As a result of his Order to Show Cause, movant has already had more than five additional months of unpaid use and occupancy.
Respondent has offered no valid excuse for nonpayment under the terms of the stipulation of settlement. The claim of lack of notice before entry of judgment is a smoke screen to the basic reality that respondent is in material breach of the stipulation of settlement and is subject to eviction for failure to comply with same. There was no need by petitioner to give notice to respondent before entry of judgment because none was required by the stipulation. See Palace Renaissance, Inc. v. Sareb Restaurant Corp., 10 Misc 3d 137, 814 NYS2d 563 (App Term, 1st Dept 2005) holding that the stipulation was to be enforced absent fraud, mutual mistake, or other good cause to void a contract, where the tenant failed to make the payments under the terms of the stipulation.
In City of New York v. 130/40 Essex Street Development, 302 AD2d 292, 756 NYS2d 23 (1st Dept 2003), the court held that the terms of the stipulation of settlement were to be enforced where [*3]respondent failed to timely make payments as required.
This Court does not accept movant's argument that his filing of a petition for bankruptcy in the United States Bankruptcy Court for the Eastern District of New York on January 4, 2008 entitles him to an automatic stay of eviction. Inasmuch as the judgment and warrant of eviction was validly entered prior to his application for bankruptcy, the automatic stay of eviction does not apply. (See 11 USC § 362(b)(22)). Further, this Court contacted the Bankruptcy Court and has obtained a copy of the Notice of Automatic Dismissal of Case Under Bankruptcy Code § 521 (i)(1) dated February 20, 2008 of movant's application for bankruptcy.
Accordingly, movant's motion is denied. All stays are vacated.
So Ordered:
DISTRICT COURT JUDGE
Dated:March 25, 2008
cc:
Richard J. Sullivan, Attorney for Respondent-Tenant
Horing Welikson & Rosen, Attorneys for Petitioner-Landlord
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