Vernon Manor Coop. Apts., Section II, Inc. v McLean

[*1] Vernon Manor Coop. Apts., Section II, Inc. v McLean 2019 NY Slip Op 50157(U) Decided on February 13, 2019 City Court Of Mount Vernon Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 13, 2019
City Court of Mount Vernon

Vernon Manor Cooperative Apartments, Section II, Inc., Petitioner,

against

Dorothy McLean, Respondent.



0105-18



Kurzman Eisenberg Corbin & Lever, LLP

Attorneys for Petitioners

One North Broadway

White Plains, New York 10601

Alvin J. Thomas, Esq.

Attorney for Respondent

10 Fiske Place, Suite 417

Mount Vernon, New York 10550
Adrian N. Armstrong, J.

In this nuisance holdover proceeding, landlord and tenant, both represented by counsel, entered into a written stipulation of settlement dated March 5, 2018 where respondent consented to the entry of a judgment for possession and the issuance of a warrant of eviction. The stipulation provided that execution of the warrant of eviction was stayed up to and including December 31, 2018. The stipulation further provided, among other things, that "respondent shall not seek to stay the execution of the judgment of possession and/or warrant of eviction obtained pursuant to this Stipulation beyond December 31, 2018 in this or any other court of competent jurisdiction."

It is undisputed that tenant defaulted in the performance of the stipulation in that she admittedly failed to vacate her apartment by December 31, 2018. Despite the agreement between the parties, and so-ordered by this court, respondent filed the instant order to show cause for a further stay of execution of the warrant of eviction.

Respondent doesn't seek to vacate the stipulation, she seeks to have the warrant of eviction stayed for 90 days to allow her more time to sell the subject premises. Respondent contends that she has every intention of vacating the apartment, [*2]videnced by her having listed the premises with a broker who has sent out a proposed contract to a prospective purchaser in October of 2018. Respondent further argues that she is current in her maintenance payments, and has no other place to live before the subject premises is sold.

Petitioner opposes the motion for a further stay of the execution of the warrant and cites the seminal case of Hallock v State of New York, 64 NY2d 224 (1984), which stands for the proposition that settlement stipulations are favored 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.

"[A]n open-court stipulation is an independent contract between the parties (see, McWade v McWade, 253 AD2d 798), and will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" (Jablonski v Jablonski, 275 AD2d 692, 693 [2000]). "[E]ven a stipulation which was improvident will not be set aside unless it is manifestly unfair or unconscionable" (Cavalli v Cavalli, supra at 667; see Wilutis v Wilutis, 184 AD2d 639, 640 [1992]). Moreover, it is well settled that stipulations of settlement "are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230 [1984]).

In respondent's order to show cause, and reply to petitioner's opposition, the respondent does not argue in her papers that the stipulation be vacated as a result of fraud, mistake, collusion or accident. The respondent contends that the execution of the warrant be extended another 90 days for her to sell the subject premises. Respondent seeks to have this court invoke the broad stay powers of CPLR § 2201 in support of her position that this court does, in fact, have the authority and discretion to grant a further stay, notwithstanding that the respondent was already given almost a ten month stay at the time she consented to the entry of a final judgment of possession and that almost an entire year has elapsed since the entry of that judgment and the issuance of the warrant thereon. Whether this authority to stay execution of a warrant should be exercised in this case must turn upon the facts presently before the Court. Respondent, herein is unable to make a firm commitment regarding the date she will be able to vacate the premises. To date there has been no singed contract for the sale of her premises.

Upon review of the facts of this case, as previously set forth, this Court believes that respondent has not set forth any basis to invalidate the stipulation entered into in this proceeding, and therefore it would be an abuse of discretion to grant any further stay of the execution of the warrant. Since the parties were represented by independent counsel, were aware of the relevant facts before signing the stipulation, this court concludes that there is no legal basis for relieving the respondent from the stipulation which required her to vacate the premises by December 31, 2018. Additionally, the Court finds that the respondent has been given "ample time" in the stipulation to find alternative housing while she seeks to sell the subject premises.

Accordingly, the motion for an additional stay of the execution of the warrant is denied and all stays are vacated. In the event that the respondent has paid February's monthly maintenance, the stay will be extended to February 28, 2019.

This constitutes the decision and order of the Court.

The Court considered the following papers on this motion:

Respondent's Order to Show Cause, Exhibits A-C, dated January 25, 2019; Petitioner's Affirmation in Opposition, Exhibits A-B, dated January 29, 2019; Respondent's Affirmation in Reply, dated February 11, 2019.

Dated:February 13, 2019

Mount Vernon, New York

____________________________

HON. ADRIAN N. ARMSTRONG