1745 Caton Ave. Assoc. v Phillipes

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[*1] 1745 Caton Ave. Assoc. v Phillipes 2015 NY Slip Op 51317(U) Decided on September 4, 2015 Civil Court Of The City Of New York, Kings County Marton, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 4, 2015
Civil Court of the City of New York, Kings County

1745 Caton Avenue Associates, Petitioner,

against

Mary Phillipes, et al., Respondents.



59620/11



Petitioner's Counsel

Goldberg and Lustig, PLLC

188 Montague Street, Suite 500

Brooklyn, NY 11201

(718) 858-4250GAL for Mary Phillipes

Jaimie Lathrop, P.C.

641 President Street, Suite 202

Brooklyn, NY 11215

(718) 857-3663Respondent Pro Se

Caricia Belkhaouas

1745 Caton Avenue, Apt. B-6

Brooklyn, NY 11226
Gary F. Marton, J.

Petitioner moves to enforce a stipulation of settlement and respondents cross-move for relief from the same. As set out below, the motion is granted, the cross-motion is denied, and the court grants petitioner a possessory judgment for [*2]$5,299.52 as all rent/use & occupancy due through December 31, 2013. A warrant may issue forthwith without stay of execution. Petitioner's application for attorney's fees is granted to the extent of setting the matter down for a hearing on Thursday November 6, 2014 at 9:30 a.m.

The above-captioned holdover proceeding is predicated upon an allegation of chronic nonpayment of rent. The premises at issue is a rent-stabilized apartment. First returnable on March 11, 2011, the proceeding was resolved on November 2, 2011 by a stipulation of settlement that was "so ordered" by the court. Respondent Mary Phillipes appeared by her guardian ad litem ("GAL"), who had been appointed by court order on August 17, 2011, and Caricia Belkhaouas, respondent Mary Phillipes' daughter, was substituted in place of "Jane Doe." The stipulation provided, among other things, that respondents would pay ongoing rent by the 7th of each month, that time was of the essence, and that upon any breach petitioner might move for a judgment of possession and related relief.

Respondents did not pay timely, petitioner moved for relief, and respondent Phillipes cross-moved for relief. Thereafter the parties entered into another stipulation of settlement that was "so ordered" by the court on May 8, 2013. At that time, the monthly rent was $1,016.82 and the accrued rent arrears were $4,151.05. The stipulation extended respondent's time to pay the $4,151.05 until June 7, 2013 and it continued respondent's stipulated obligation to pay rent by the 7th of each month. The monthly rent rose to $1,057.62 on June 1, 2013.

Respondent has not made all of the payments due under this second stipulation, i.e., from June 1, 2013 through December 11, 2013, seven monthly payments of $1,057.62 came due and an additional $4,151.05 was due by June 7, 2013. Now, petitioner moves again for relief and respondent cross-moves again for relief. Petitioner's moving papers show that during the period from May 8, 2013 through December 11, 2013 respondent paid only $1,016.82 on May 15, 2013, $1,016.82 on June 26, 2013, $3,164.23 by four checks on August 14, 2013, and $1,057.00 on September 11, 2013. Respondent also tendered a check for $1,057.62 on July 17, 2013 but it bounced, i.e., on July 22, 2013 it was returned for insufficient funds. In sum, a total of $11,554.39 came due during this period but respondents paid only $6,254.87, leaving a balance of $5,299.52.

Respondent's cross-motion seeks relief on the ground that, at bottom, the stipulation is somehow so unfair that is should be set aside. The court disagrees. The parties entered into not one stipulation of settlement but two, the second of which in effect cured respondents' breaches of the first. The parties were free to chart their own course and they did. Meanwhile, respondents' breaches of the second stipulation cannot be said to have been de minimis or promptly cured; instead, they were substantial. The court will uphold the stipulation. Boston-167, LLC v Coaxum, 42 Misc 3d 127(A) (App Term, 1st Dep't, 2013).

Petitioner also seeks legal fees pursuant to paragraph 5 of the November 2, 2011 stipulation and paragraph 20(A)(5) of the lease between the parties,. The court grants relief as set out above.

The court will mail copies of this decision and order to the parties.



Dated:Brooklyn, NY

September 4, 2015

_________________________________

Gary F. Marton