580 Park Ave., Inc. v. Mirto

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 26, 2019
• Docket: 2019 NYSlipOp 51067(U)
• Status: Published

Opinion

580 Park Avenue, Incorporated, Petitioner-Landlord-

against

Joseph R. Mirto, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), dated January 11, 2018, which denied his motion to vacate a warrant of eviction in a nonpayment summary proceeding.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), dated January 11, 2018, affirmed, with $10 costs.

The parties' stipulation of settlement is clear, and literal enforcement of its terms is not unjust under the circumstances (see Taboola, Inc. v Newsweek Media Group, Inc., 171 AD3d 510 [2019]; Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 [1996]). The commercial tenant clearly violated the stipulation's provisions by failing to make two scheduled payments in a timely manner and then by failing to cure the first payment default in the agreed-upon five-day period (see Cadlerock Joint Venture, L.P. v Rubenstein, 26 AD3d 219, 220 [2006]). Moreover, literal enforcement of the terms of the stipulation of settlement is not unjust in this case, where the agreement was negotiated by sophisticated parties, all of whom were represented by counsel, and the default was neither inadvertent nor trivial (see McKenzie v Vintage Hallmark, 302 AD2d 503 [2003]; see also 1029 Sixth v Riniv Corp., 9 AD3d 142 [2004], appeal dismissed 4 NY3d 795 [2005]).

We have considered tenant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 26, 2019