Opinion
2012-2059 K C
08-06-2015
DUBOR ASSOCIATES, Respondent, v. Andrea RICHBURG, Appellant, and Frank Drewery, “John” Echols and “John Doe”/“Jane Doe,” Undertenants.
Steven Banks, The Legal Aid Society, Brooklyn (Jamila Wideman and Stephen Myers of counsel), for appellant. Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park (Arianna Gonzalez–Abreu of counsel), for respondent.
Steven Banks, The Legal Aid Society, Brooklyn (Jamila Wideman and Stephen Myers of counsel), for appellant.
Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park (Arianna Gonzalez–Abreu of counsel), for respondent.
Opinion
ORDERED that the order is reversed, without costs, and landlord's motion for leave to execute the warrant of eviction is denied.
In this holdover proceeding based on an alleged breach of a substantial obligation of the tenancy, insofar as is relevant to this appeal, Andrea Richburg (tenant) and landlord entered into a stipulation of settlement requiring the permanent exclusion of tenant's son from the premises. Specifically, the stipulation provided that tenant would “never allow and/or facilitate access and/or entry of [her son] into the subject apartment, building and/or property.” About two and half years later, landlord moved for leave to execute the warrant of eviction, alleging, among other things, that tenant had allowed her son “to reside and/or visit the subject premises on a daily basis.” Tenant denied the allegations, and a hearing was held.
The evidence at the hearing showed that, on one occasion, tenant's son had come to tenant's door to discuss funeral arrangements for tenant's son's father (tenant's estranged husband), who had recently passed away. Tenant's unrebutted testimony was that this visit was short and unannounced. Tenant denied that she had let her son inside the apartment; however, landlord's witness alleged that tenant's son did go inside. Landlord's witness agreed that the encounter was short. In addition to this incident, landlord's witness testified to having seen tenant's son on the property, a large complex covering about 32 blocks, a few times, some of those times with tenant. After the hearing, the Civil Court granted landlord's motion, finding that tenant's son's decision to visit the premises, as well as “[tenant's] decision to facilitate his entry to the premises by opening the door, and [ ] [tenant's] decision to carry on a conversation on the premises from which [tenant's son] was barred—all demonstrate a disregard for the consequences of violating the May 2009 stipulation and for the safety of everyone involved.” We reverse.
Settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see e.g. Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178 1984; Matter of Frutiger, 29 N.Y.2d 143, 324 N.Y.S.2d 36, 272 N.E.2d 543 1971 ). Nevertheless, it is well settled that the enforcement of a court-ordered stipulation of settlement is “subject to the supervision of the courts” (Malvin v. Schwartz, 65 A.D.2d 769, 769, 409 N.Y.S.2d 787 1978, affd. 48 N.Y.2d 693, 422 N.Y.S.2d 58, 397 N.E.2d 748 1979 ), and courts may relieve a party from the consequences of strict enforcement of a stipulation when such enforcement would be unjust or inequitable (see e.g. Weitz v. Murphy, 241 A.D.2d 547, 661 N.Y.S.2d 646 1997; Bank of N.Y. v. Forlini, 220 A.D.2d 377, 631 N.Y.S.2d 440 1995 ). Such relief is appropriate where a party has substantially complied with the stipulation and where the default is de minimis (see e.g. Winthrop Realty, LLC v. Menal, 21 Misc.3d 141(A), 2008 N.Y. Slip Op. 52383(U), 2008 WL 5005215 [App.Term, 2d & 11th Jud.Dists.2008]; J & H Mgt. Corp. v. W.W.R.S Automotive Inc., 7 Misc.3d 134(A), 2005 N.Y. Slip Op. 50742(U), 2005 WL 1208398 [App.Term, 2d & 11th Jud.Dists.2005] ).
In our view, strict enforcement of the stipulation is not warranted on the facts of this case. As to the one proven visit between tenant and her son, some two and a half years after the stipulation had been entered into, there was no evidence that this short encounter was at tenant's “invitation, request or with her acquiescence” (Matter of Vega v. Franco, 277 A.D.2d 131, 131, 717 N.Y.S.2d 61 2000; cf. Matter of Patrick v. Hernandez, 309 A.D.2d 566, 765 N.Y.S.2d 508 2003 ) and tenant denied that her son had entered the apartment (see Matter of Vega, 277 A.D.2d 131, 717 N.Y.S.2d 61; cf. e.g. Matter of Lopez v. New York City Hous. Auth., 121 A.D.3d 610, 995 N.Y.S.2d 62 2014; Matter of Romano v. New York City Hous. Auth., 121 A.D.3d 503, 994 N.Y.S.2d 592 2014; Matter of Liverman v. New York City Hous. Auth., 118 A.D.3d 580, 580, 988 N.Y.S.2d 178 2014; Matter of Horne v. New York City Hous. Auth., 113 A.D.3d 575, 980 N.Y.S.2d 19 2014; Matter of Cruz v. New York City Hous. Auth., 106 A.D.3d 631, 966 N.Y.S.2d 399 2013; Matter of Romero v. Martinez, 280 A.D.2d 58, 63, 721 N.Y.S.2d 17 2001 ). As to the other times that tenant's son was allegedly seen on the premises, the evidence was not clear that tenant had actually been seen with her son and there was no evidence that tenant had facilitated those visits.
Landlord argues that it has a duty to keep the other residents of the complex safe by excluding tenant's son from the property altogether. Safety is a legitimate concern here as the allegations made against tenant's son in the holdover petition were very serious. However, landlord's claimed interest in not allowing tenant's son any access to the property is severely undermined by the facts that landlord itself hired tenant's son, after the permanent exclusion stipulation had been entered into, to work on the grounds, that tenant's son did work on the property for several months, and that his work apparently included not only being on the property, but going inside the buildings and apartments as well.
Based on all of the circumstances presented, we find that landlord failed to prove a violation of the stipulation sufficient to warrant the termination of tenant's long-term tenancy (see Matter of Vega v. Franco, 277 A.D.2d 131, 717 N.Y.S.2d 61; Tri Cruger Realty, LLC v. Masterson, 36 Misc.3d 145(A), 2012 N.Y. Slip Op. 51590(U), 2012 WL 3640644 [App.Term, 1st Dept.2012]; 160 W. 118th St. Corp. v. Gary, 32 Misc.3d 1, 926 N.Y.S.2d 799 [App.Term, 1st Dept.2011] ).
Accordingly, the order is reversed and landlord's motion for leave to execute the warrant of eviction is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.