146 17th St. Assoc. LLC v Ruiz

[*1] 146 17th St. Assoc. LLC v Ruiz 2018 NY Slip Op 51713(U) Decided on November 2, 2018 Civil Court Of The City Of New York, Kings County Barany, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2018
Civil Court of the City of New York, Kings County

146 17th Street Associates LLC, Petitioner-Landlord,

against

Zoraida Ruiz, Respondent-Tenant. "JOHN DOE" AND "JANE DOE" Respondents-Undertenants.



075123/17



Petitioner's Attorneys:

Heiberger & Associates, PC

589 8th Avenue, 10th Floor, New York, NY 10018

Phone:(212) 532-0500

Respondent's Attorneys:

Brookllyn Legal Services

900 Fulton Street, 2nd Floor, Brooklyn, NY 11238-2348

Phone:(718) 233-6364
Kenneth T. Barany, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's Motion.

PAPERS NUMBERED

Petitioner's Notice of Motion, Affirmation in Support, Affidavit in Support & Exhibits ("A" - "H") 1, 2,3

Tenant's Notice of Cross-Motion, Affirmation in 4,5,6

Opposition To Motion and in Support of Cross-Motion, Affidavit in Opposition to Motion and in Support of Cross-Motion & Exhibits ("A" — "F")

Reply Affirmation in Further Support of Motion and in Opposition 7, 8

to Cross-Motion, Reply Affidavit in Further Support of Motion and

in Opposition To Cross-Motion & Exhibit ("A")

Upon the foregoing cited papers, the Decision and Order is as follows:

This Holdover proceeding is predicated upon allegations of nuisance. Both petitioner and tenant Zoraida Ruiz (hereinafter "respondent") appeared by counsel and, after several adjournments and service of respondent's motion to dismiss, the matter was settled by stipulation dated February 7, 2017 [sic] on February 7, 2018. Even upon a cursory review of this stipulation, it is clear that the terms were extensively negotiated. The stipulation, in relevant part, placed respondent on a one-year probationary period but acknowledged that respondent denies the allegations contained in the Notice to Cure and Notice of Termination (see Paragraph "3" of Exhibit "B" annexed to petitioner's motion). Petitioner now moves for entry of a judgment of possession and issuance of a warrant based upon respondent's purported breach of the stipulation[FN1] .

In support of the motion, petitioner's counsel correctly notes that absent a showing of fraud, collusion, or overreaching, a stipulation should not be disturbed (see Paragraph "13" of the Isaac D. Senior Affidavit; see also In re Estate of Frutiger, 29 NY2d 143, 150 (1971)). As noted by attorneys Samuel S. Tripp and John M. Armentano in their Article on Stipulations published in the New York State Bar Journal in February 1987, stipulations encompass "the philosophy underlying the compromise of claims by litigants against the possibility of a better or worse result after a costly trial of sharply disputed issues, the resolution of which is fraught with uncertainty".

Public policy of this state favors and encourages parties to a dispute to enter into stipulations of settlement. This policy has been ratified and upheld by the Court of Appeals (see Mitchell v. NY Hosp., 61 NY2d 208 (1984)). As noted in Mitchell:

[c]ourts have long favored and encouraged the fashioning of stipulations as a means of expediting and simplifying the resolution of disputes . Parties to a Civil dispute are free to try out their own litigation course [and] may fashion the basis upon which a particular controversy will be resolved.

Id. at 214 (citations and quotations omitted).

Thus, the specific terms of the stipulation into which the two represented parties entered in the instant case dictate whether petitioner's motion should be granted. As part of this inquiry, the court notes the following provisions contained in the stipulation as follows:

4. Notwithstanding [tenant's] denial [of Petitioner's allegations], Respondent agrees to abide by the following conditions for a twelve month period, commencing on the execution date of this agreement:a. Respondent will not smoke in any common areas of the building, which include hallways, stairwells, or the lobby;b. Respondent will not purposefully or negligently leave personal property in the hallway for a period exceeding 24 hours;c. Respondent will not purposefully or negligently ring the doorbells of [*2]other tenants' apartments and walk away;d. Respondent will not purposefully or negligently create unreasonable noise, with unreasonable noise defined as noise measured at levels in excess of the examples set forth in Administrative Code Section 24-218(b)(1),(2), and (3), and specifically excepting normal household noise such as footsteps, the occasional dropped item, or the use of a blender or vacuum.[FN2]

The Stipulation of settlement further provided that in the event of an alleged breach:

5. If Petitioner believes that respondent has defaulted on the terms of Paragraph 4 to a degree that constitutes nuisance under RSC section 2424.3(b), Petitioner's counsel will serve Respondent's counsel with a notice of the alleged default and Respondent will have 10 days from service to cure the default and notify Petitioner's counsel of said cure.6. If Respondent does not cure the alleged default within 10 days of service of the notice of default, Petitioner may move, on eight days' notice of motion, to restore this case for a hearing.7. Petitioner's motion for a hearing must be accompanied by an affidavit from an individual with personal knowledge of the default. Petitioner shall include the following information in the motion: the time and date of the alleged violation and a description of actions constituting the alleged violation.[FN3]

In support of its motion, petitioner originally claimed one default occurred after the cure period provided in a Notice to Cure dated April 9, 2018, to wit, "on or about May 23, 2018, occupants of respondent are seen outside the premises violating the stipulation by hanging out on the fire escape and smoking"[FN4] . This post-cure breach, even if true, in no way violates the specific terms of the stipulation. The parties were free to include, under the umbrella of the settlement, respondent's invitees, licensees, guests, occupants etc., but chose not to. This court will not expand the arms-length stipulation when the parties themselves chose not to include individuals other than respondent in the stipulation.

Petitioner tries to bolster its motion by providing a reply affidavit from the superintendent, Mirza Nurkovic, who now asserts for the first time that respondent continued to leave garbage in the hallways each day well into June.[FN5] This court [*3]notes first the CPLR Section 2214 requirement that supporting affidavits in support of the relief requested are to be served prior to the return date of the motion, and not in reply (see Alto v. Firebaugh Realty Corp., N.V., 33 AD3d 738,739 (2d Dep't 2006); Jain v. New York City Tr. Auth., 27 AD3d 273, 273 (1st Dep't 2006); Hoyte v. Epstein, 12 AD3d 487, 488 (2d Dep't 2004)). This requirement notwithstanding, the second Nurkovic affidavit also fails to provide support for the relief sought.

First, it is unclear which facts were within the personal knowledge of the affiant and which facts the affiant learned by relying on "a review of petitioner's records". Even assuming, arguendo, that all the newly alleged breaches are within the personal knowledge of the affiant, the affidavit still fails to state the times of the breaches and whether each instance of respondent failing to dispose of her garbage properly, and placing it in the hallway instead, exceeded 24 hours. These are specific prerequisites for alleging a breach by respondent under the terms of the stipulation.

For the foregoing reasons, the motion is denied without prejudice to petitioner's right to move for relief pursuant to the terms of the stipulation if a breach can be established. At the same time, respondent is strongly cautioned by this court to immediately cease any conduct that may be in breach of the stipulation or potentially face eviction under the terms of the probationary stipulation in the future.

This constitutes the Decision and Order of the Court.

SO- ORDERED

DATED: November 2, 2018

______________________

Kenneth T. Barany

J.H.C Footnotes

Footnote 1: At oral argument on October 18, 2018, tenant withdrew her cross-motion for an order to correct, as the parties acknowledged that repairs were completed.

Footnote 2: Contrary to Petitioner's counsel's assertions, the stipulation did not incorporate all of the conduct alleged in the underlying notices, e.g. allowing smoke to emanate from the subject premises in to the common areas of the building, loitering in front of the building.

Footnote 3: This court does not address the standard agreed to in the stipulation for entry of a Judgment cited by respondent's counsel, as it does not bear upon whether this matter should be set for a hearing. If this matter was set for a hearing, that standard would need to be applied as stipulated.

Footnote 4: Notably, respondent claims that all behavior contained in the Notice To Cure was "cured" within the time frame presented. Respondent also denies knowledge of the persons involved in the May 23, 2018 incident and further denies they are hanging out on her fire escape, let alone with her permission.

Footnote 5: This court disagrees with respondent's counsel that the two Nurkovic Affidavits fail to qualify as affidavits from a person with personal knowledge required under the terms of the stipulation. In the first affidavit, the affiant specifically notes that he or she is "fully familiar with the facts and circumstances set forth below." In the second, the affiant affirms, "I am fully familiar with the facts stated herein" and notes that it is based upon personal knowledge and a review of petitioner's records. Nevertheless, the court finds other issues with the affidavits.