Matter of Embassy House Eat LLC v. Dyan P

2017 NY Slip Op 4543, 151 A.D.3d 483, 53 N.Y.S.3d 531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2017
• Docket: 4191 500099/15
• Status: Published

Opinion

Order, Supreme Court, New York County (Andrea Masley, J.), entered August 12, 2016, which granted respondent tenant’s motion to vacate a so-ordered stipulation, dated May 16, 2014, and the resulting judgment of possession and warrant of eviction, unanimously affirmed, without costs.

The record supports the motion court’s finding that respondent lacked the capacity to enter into the stipulation and thus showed good cause to vacate it (see Matter of Frutiger, 29 NY2d 143, 150 [1971]; Matter of New York City Hous. Auth. v Jackson, 48 AD3d 818, 819 [2d Dept 2008]; Genesis Holding, LLC v Watson, 5 Misc 3d 127[A], 2004 NY Slip Op 51218[U] [App Term, 1st Dept 2004]). The evidence shows, among other things, that the City Marshal referred the elderly respondent to Adult Protective Services 10 months after she entered into the stipulation, that she had a history of depression and anxiety, that her apartment had mold violations since 2010, that she had a sensitivity to mold, and that the mold and other ailments affected her physical and mental condition during the course of the various proceedings. Unlike the tenant in Ng v Chalasani (51 Misc 3d 134[A], 2016 NY Slip Op 50544[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), relied upon by petitioner, respondent offered more than “[m]ere conclusory assertions of stress and depression” (2016 NY Slip Op 50544[U], *2).

We have considered petitioner’s remaining arguments and find them unavailing.

Concur—Tom, J.P., Sweeny, Andrias, Moskowitz and Manzanet-Daniels, JJ.