New York State Urban Development Corp. v. MJM Exhibitors, Inc.

193 A.D.2d 523, 598 N.Y.S.2d 177, 1993 N.Y. App. Div. LEXIS 5116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Stanley Parness, J.), entered October 22, 1992, which denied appellant-condemnee’s motion to rescind a stipulation of settlement on the ground of fraud, unanimously affirmed, without costs.

The IAS Court correctly held that a showing of necessity is not required by a condemnor seeking a writ of assistance pursuant to EDPL 405 (A), the only prerequisite to such relief being the condemnor’s payment to the condemnee of the advance payment, and that the condemnor’s alleged misrepresentations concerning its immediate need for possession of the premises in order to meet construction deadlines, and the condemnee’s alleged reliance thereon in entering into the challenged stipulation requiring its immediate removal from the premises, are therefore irrelevant. In any event, appellantcondemnee’s claims of reliance are belied by the absence of any indication by its co-owner that his consent to the stipulation was contingent upon respondent’s need for the premises. Nor is there any indication that respondent’s representations made prior to the execution of the stipulation were then untrue. Although respondent notified the court of the delay only two weeks after the stipulation was executed, it also stated that the modification was the result of "recent developments”, and that the change would not "affect [its] ongoing efforts to vacate occupants from the condemned premises.” Accordingly, appellant’s request for an evidentiary hearing was properly denied. We have considered appellant’s remaining arguments and find them to be without merit. Concur— Rosenberger, J. P., Kupferman, Asch and Rubin, JJ.