Charles v Noel

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[*1] Charles v Noel 2018 NY Slip Op 51969(U) Decided on December 31, 2018 Civil Court Of The City Of New York, Kings County Colon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2018
Civil Court of the City of New York, Kings County

Jean F. Jean Charles, Plaintiff,


Rigaud M. Noel, Defendants.


Law Office of Scott D. Gross for Plaintiff

Sidney Cherubin, Esq., Brooklyn Bar Association Volunteer Lawyers Project for Defendant
Lizette Colon, J.

Plaintiff Jean F. Jean Charles ("landlord"), represented by the Law Office of Scott D. Gross, commenced this action against the defendant Rigaud M. Noel ("tenant"), represented at trial by Sidney Cherubin, Esq., Volunteer Lawyer Project, seeking to recover damages for "breach of contract or warranty" in the amount of $13,500 with interest from 3/1/2012 (rent from March 2012 through November 2012 @ $1,200 per month)[FN1] . A bench trial was held on September 12, 2018 with the assistance of a Creole interpreter for the defendant and adjourned to November 20, 2018 (for court archived file), and further adjourned to December 28, 2018 (for memorandums of law).


This case arises out of a landlord-tenant relationship. On or about September 1, 2010, landlord and tenant signed a one year rent lease for all rooms on the second floor at 1038 East 85th Street, Brooklyn, New York commencing on September 1, 2010, for $1,500 a month [FN2] . It is undisputed that thereafter defendant remained in the subject apartment and a month-to-month tenancy was created.

On or about August 10, 2012, plaintiff commenced the underlying residential holdover proceeding against defendant Noel, et al in Kings County Housing Court (L & T 86562/12 )[FN3] . Defendant voluntarily vacated and the holdover proceeding was discontinued pursuant to a [*2]stipulation of settlement, dated October 1, 2012, so ordered in housing court. There is no indication that an interpreter was provided for the defendant in the holdover proceeding.

The Stipulation was drafted and typewritten by the Court and was undisputedly executed by the parties, who appeared pro se. Said Stipulation of Settlement provides:

(1) After review of all of the issues, the parties acknowledge that they are giving up their right to a trial and appearing pro se, agree to the following stipulation in settlement of this matter.

(2) The parties agree that respondent has not paid use and occupancy since March 2012 at a monthly rent of $1500 for a total owed of $12,000.00.

(3) The parties agree to a final judgment of possession in favor of petitioner. The warrant may issue forthwith but execution is stayed through November 18, 2012 for respondent to surrender the keys, vacate the premises and leave the premises in broom clean condition.

(4) Anything left in the premises after vacatur shall be deemed abandoned. Respondent agrees to leave the premises free of any occupants and possessions.

(5) Petitioner shall provide a written and dated receipt for the keys upon timely surrender.

(6) Petitioner must provide all essential services as required by law or respondent(s) may restore by order to show cause.

(7) Upon default, if respondent fails to vacate by November 18, 2012 warrant to execute after service of a marshals notice.


The foregoing facts are undisputed; therefore the sole issue before the Court is whether or not the parties knowingly waived their rights in the underlying holdover proceeding. The parties were provided an opportunity to submit to the Court memorandums of law on this issue by December 28, 2018, however no submissions were received by this Court.


Plaintiff, relying on the stipulation of settlement, argues that while the stipulation indicated that use and occupancy was due, it was not provided for as it was not the subject of the holdover proceeding. Plaintiff further argues that failure to provide for preservation of claims is not a waiver of claims.


Defendant, relying on the stipulation of settlement, argues that he is not liable for rental arrears because he timely vacated and because the underlying proceeding was discontinued by so ordered stipulation. Defendant further contends that plaintiff waived his claims, since the stipulation indicated that use and occupancy had not been paid, but preservation of plaintiff's claims was not provided for. Moreover, defendant argues that plaintiff understood that, in consideration of defendant's vacatur, plaintiff was waiving its claims to use and occupancy. Furthermore, defendant claimed in the holdover proceeding [FN4] and at trial that the condition of the apartment during his tenancy warranted an abatement.

The stipulation indicated that some use and occupancy was owing but was silent on the repayment of the same, although all other terms and conditions were provided for. In addition, it stands to reason that defendant voluntarily vacated with the understanding and reasonable [*3]expectation that, in the future, plaintiff would not proceed against the defendant for the very claims it could have easily pursued at that time. Indeed, at no point during the allocution of the holdover proceeding [FN5] or within the stipulation itself, was it made known to defendant that plaintiff may pursue use and occupancy in the future, notwithstanding defendant's agreement to vacate. Moreover, relying on the settlement, defendant potentially and unknowingly waived his defenses. It further stands to reason that if defendant knew that he would ultimately be liable for the rent, he would have stayed in the apartment, or at the very least, have the court hold a trial during the housing proceeding, when the facts and evidence were fresh and available to determine an abatement.

This Court, as the trier of the facts, holds that the parties believed and relied on the stipulation as a complete resolution to their claims, especially the defendant who did not have a Creole interpreter and who would reasonably rely on the waiver/complete resolution as consideration for the voluntary vacatur as opposed to a trial where the merits of his defenses and claims for abatement would be decided. Accordingly, judgment for defendant; this action is dismissed.

Exhibits will be available at the Office of the Clerk of the Court thirty days after receipt of a copy of this decision.

This constitutes the Decision/Order/Judgment of the Court. The signing of this Decision/Order/Judgment shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule providing for filing, entry and notice of entry.


Dated: December 31, 2018

Lizette Colon

Judge, Civil Court Footnotes

Footnote 1:Plaintiff's complaint

Footnote 2:Plaintiff's exhibit 2

Footnote 3:Plaintiff's exhibit 1

Footnote 4:This Court takes judicial notice of the October 1, 2012, transcript of the holdover proceeding.

Footnote 5:Judge: "...Okay, now this is saying you haven't paid any rent since March, but, just move by November 18th. You understand, and that's acceptable, then you have to sign all 3 copies. Mr. Jean-Charles: Thank you, my honor. (October 1, 2012, transcript pg 6, ln 8-12 (allocution of the so ordered stipulation of settlement).