443-445 Jefferson Ave., LLC v. Severin

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 21, 2017
• Docket: 2017 NYSlipOp 50565(U)
• Status: Published

Opinion

443-445 Jefferson Avenue, LLC, etc., Landlord-Respondent,

against

Louesta Severin, Tenant-Appellant, New York City Housing Authority, Respondent, et al., Undertenants.

The Legal Aid Society (Kathleen Brennan, Esq.), for tenant-appellant. Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C. (Gregory S. Bougopoulos, Esq.), for landlord-respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated December 7, 2015. The order denied tenant's motion to vacate a stipulation of settlement, final judgment and warrant, and for leave to file an amended answer in a nonpayment summary proceeding.

ORDERED that the order is reversed, without costs, tenant's motion to vacate the stipulation of settlement, final judgment and warrant, and for leave to file an amended answer is granted, and tenant shall serve the amended answer within 20 days after service upon her of a copy of this decision and order.

In this nonpayment proceeding to recover a Section 8 tenant's share of the rent due for nine months, which share was alleged to be $800 per month, landlord was awarded a final judgment and warrant pursuant to a stipulation of settlement in which tenant, appearing without counsel, agreed to convert the proceeding into a holdover proceeding and to vacate the premises within three months, during which time all use and occupancy would be waived, and landlord agreed to pay tenant differing amounts of money depending on how quickly she would vacate the premises. After retaining counsel, tenant moved to vacate the stipulation, final judgment and [*2]warrant, and for leave to file an amended answer. By order dated December 7, 2015, the Civil Court denied tenant's motion.

Upon a review of the record, we find that the stipulation was entered into inadvisedly (see Matter of Frutiger, 29 NY2d 143, 150 [1971]; Weitz v Murphy, 241 AD2d 547 [1997]; 1420 Concourse Corp. v Cruz, 135 AD2d 371, 373 [1987]; Park Props. Assoc., L.P. v Williams, 38 Misc 3d 35, 37 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]), as tenant established that for four of the nine months during which rent was not paid, the petition sought arrears in an amount greater than tenant's share of the rent even though, prior to the commencement of this proceeding, the New York City Housing Authority had informed landlord that tenant's share of the rent for those months was $410, not $800 as sought by landlord in its petition.

Accordingly, the order is reversed, tenant's motion to vacate the stipulation of settlement, final judgment and warrant, and for leave to file an amended answer is granted, and tenant shall serve the amended answer within 20 days after service upon her of a copy of this decision and order.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Paul Kenny
Chief Clerk
Decision Date: April 21, 2017