Summary
In Wolcott, the Appellate Term affirmed the trial court for vacating a stipulation in which the tenant "unknowingly waived defenses and the opportunity to cure" pursuant to RPAPL 753 (4).
Summary of this case from Amalgamated Warbasse Houses, Inc. v. Steven C.Opinion
2002-1685 K C.
Decided October 2, 2003.
Appeal by landlord from an order of the Civil Court, Kings County (B. Scheckowitz, J.), dated September 14, 2001, granting tenant's motion to vacate a stipulation settling a summary holdover proceeding.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Landlord commenced this proceeding against the 73-year-old tenant, who has lived in her rent controlled apartment for 43 years, on the ground that a single inspection revealed an accumulation of debris alleged to constitute an ongoing nuisance and an interference with the comfort and safety of other tenants (NY City Rent and Eviction Regulations [ 9 NYCRR] § 2204.2 [a] [2]). On the petition's return date, tenant appeared pro se and, following discussions with landlord's counsel, executed a stipulation whereby she surrendered possession in return for several week's stay of the execution of the warrant of eviction and the opportunity to apply to landlord for an extension of the stay. Subsequently, tenant, now represented by counsel, moved to vacate the stipulation, which motion the court granted after a hearing, on the ground, inter alia, that the elderly, distraught tenant, erroneously persuaded that she had no defense to the proceeding and anxious for time to acquire alternate accommodations, unknowingly waived defenses and the opportunity to cure (RPAPL 753 (4); Trump Village Section 3, Inc. v. Birnbaum, NYLJ, Nov. 29, 2002 [App Term, 9th 10th Jud Dists] [staying indefinitely the warrant of eviction per RPAPL 753 on proof tenant "cure[d] the cluttered conditions existing in her apartment"]; see also Lincoln Terr. Assoc. v. Snow, NYLJ, Nov. 28, 1983 [App Term, 1st Dept]). The court also declined to dismiss the petition and restored the proceeding to the trial calendar. We find no basis to infer an abuse of discretion and affirm ( Cabbad v. Melendez, 81 AD2d 626; Solack Estates v. Goodman, 102 Misc 2d 504 [App Term, 1st Dept], affd 78 AD2d 512; 850 Amsterdam Co. v. Levy, NYLJ, Mar. 9, 1987 [App Term, 1st Dept]).