Rivera v. Kaba

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 6, 2019
• Docket: 2019 NYSlipOp 50892(U)
• Status: Published

Opinion

Bruce Rivera, Plaintiff-Respondent,

against

Djene Kaba, Defendant-Appellant.

Defendant appeals from a judgement of the Civil Court of the City of New York, Bronx County (Brenda Rivera, J.), entered July 2, 2018, after a nonjury trial, in favor of plaintiff and awarding him damages in the principal amount of $11,620.

Per Curiam.

Judgment (Brenda Rivera, J.), entered July 2, 2018, modified to reduce plaintiff's recovery to the principal sum of $4,455; as modified, judgment affirmed, without costs.

The portion of plaintiff-landlord's complaint which seeks damages for unpaid rent through October 6, 2017, was precluded under the doctrine of collateral estoppel (see Conason v Megan Holding, LLC, 25 NY3d 1, 17 [2015]), because the question of possession of the apartment and of the amount to be paid for use and occupancy through October 6, 2017 was previously decided by a Civil Court judgment that incorporated a stipulation of settlement between the parties providing for use and occupancy at $372 per month (see Haberman v Emanuel, 189 AD2d 556, 557 [1993]). There was no reservation in the stipulation for plaintiff to seek any amount greater than the $372 per month agreed upon for this period.

With respect to plaintiff's claims for unpaid use and occupancy accruing after defendant failed to vacate the premises by the stipulated October 6, 2017 date, such claims are not barred by the prior stipulation (see Ruth v Shalom Bros., 276 AD2d 408 [2000]). The evidence supports a finding that defendant is obligated to pay $1,550 per month, plus a $35 late fee, for the period after October 6, 2017.

We have reduced the judgment accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 06, 2019