Opinion
No. L & T 22942/2010.
2010-12-30
EVERGREEN ESTATES HDFC, INC., Petitioner–Landlord v. Carolyn McGHEE, 1165 Evergreen Avenue, Apt. F3 Bronx, New York 10472, Respondent–Tenant.
Cohen Hurkin Ehrenfeld Pomerantz & Tenebaum, LLP by Marybeth Hotaling, Esq., Brooklyn, for Petitioner. Carolyn McGhee, Bronx, Respondent Pro Se.
Cohen Hurkin Ehrenfeld Pomerantz & Tenebaum, LLP by Marybeth Hotaling, Esq., Brooklyn, for Petitioner. Carolyn McGhee, Bronx, Respondent Pro Se.
BACKGROUND
SABRINA B. KRAUS, J.
This summary nonpayment proceeding was commenced by EVERGREEN ESTATES HDFC, INC (Petitioner) and seeks to recover possession of Apartment F3 at 1165 EVERGREEN AVENUE, BRONX, NEW YORK 10472 (Subject Premises) based on allegations that CAROLYN McGHEE (Respondent) had failed to pay past due rent for the Subject Premises.
PROCEDURAL HISTORY
This proceeding was commenced by issuance of a ten day notice dated March 29, 2010 seeking $1183.94 in rent arrears, at a rate of $25.00 per month from April 2006 through March 2010. The petition is dated April 28, 2010, and sought $1418.94 in arrears through April 2010, including $210.00 in legal fees.
The Respondent filed an answer on May 12, 2010, asserting a general denial. The proceeding was initially returnable on May 20, 2010. On May 20, 2010, Respondent failed to appear, and Petitioner applied for a default judgment. In support of its request for a default judgment, Petitioner submitted a rent history from its client, which was generated on May 19, 2010. Pursuant to said document, Petitioner asserted a total of $1233.94 in arrears through May 2010.
However, because the Petition sought arrears going back to 2006, the Court reviewed the past history of litigation between the parties pursuant to Court records. Court records revealed four previous summary proceedings between the parties, during the period for which arrears were sought in this proceeding, ie 2006 forward.
The court noted that the parties had last entered into a stipulation under Index No. 7367/08 in which it was agreed that the arrears due through June 2008 totaled $238.44. The Court noted that from June 2008 through May 2010 an additional 23 months had come due at $25.00 per month, and that Petitioner acknowledged payments received from Respondent during this period totaling $437.50, leaving arrears of $375.94 due through May 2010. The Court issued a written order, based on the foregoing, granting Petitioner's application for a default to the extent of awarding Petitioner a judgment for $375.94 in arrears through May 2010, and staying issuance of the warrant for five days, to afford Respondent an opportunity to pay.
On May 26, 2010, Respondent applied fo an order to show cause to vacate the default. The order to show cause was returnable on June 10, 2010. Respondent failed to appear on the return date, and the motion was denied. On July 15, 2010, the Court was presented with a judgment for the May 20, 2010 default, and the judgment was signed. On July 19, 2010, the warrant of eviction issued.
On August 6, 2010, Respondent made three separate order to show cause applications, seeking to stay execution of the warrant. All three applications were denied based on Respondent's failure to assert an excusable default in appearing for the May 20 and August 6 court dates. A fifth application was denied on August 9, 2010.
On August 11, 2010, Respondent applied for an order to show cause, supported by an approval for $1308.94 in arrears. The Court granted the application, and the motion was returnable on August 25, 2010. On August 25, 2010, the parties entered into a stipulation of settlement which agreed that there was $1308.94 in arrears due through August, and which stayed execution of the warrant through September 15, 2010 for payment of said sum plus September rent. A break down from Petitioner's client is annexed to the stipulation, and shows arrears through August 2010 totaling $1308.94.
On October 6, 2010, Respondent applied for another order to show cause, based on the August 10, 2010 approval for the $1308.94. The motion was returnable on October 20, 2010, and was adjourned on Petitioner's application for Petitioner to file a cross-motion. On November 1, 2010, Respondent failed to appear and the motion was denied per written order, which noted that the Court had not received any cross-motion from Petitioner.
On November 10, 2010, Respondent applied for another order to show cause stating that she had attempted to pay Petitioner the rent, and that Petitioner refused to accept the payment. The motion was made returnable on November 12, 2010. On November 12, 2010, the motion was adjourned again on Petitioner's application for submission of a cross-motion, which the Court granted pursuant to a written order.
Petitioner filed a cross-motion with the Court on November 29, 2010, and the motions were further adjourned to December 14, 2010, on Respondent's application for an opportunity to hire counsel to address the claims for fair market rent raised in Petitioner's cross-motion. On December 14, 2010, Kenneth Holmes appeared. Mr. Holmes stated that he was Respondent's cousin, that he resides in the Subject Premises with Respondent and that Respondent was ill and could not be in Court on that date. The motions were further adjourned to December 29, 2010.
Petitioner then filed a second cross-motion on December 29, 2010, which seeks the identical relief as the cross-motion filed on November 29, 2010, but had a return date for December 29, 2010. The first cross-motion has an affidavit of service indicating service was made on November 26, 2010, although the accompanying Notice of Cross–Motion and affidavit were executed three days later on November 29. The second cross-motion has an affidavit of service indicating Respondent was served by mail on December 15, 2010.
Respondent failed to appear on December 29, 2010, the motions were marked submitted, and the Court reserved decision.
THE MOTIONS
Petitioner's cross-motion seeks an order vacating the stipulation dated August 25, 2010 based on mutual mistake of fact. Petitioner's cross-motion is supported by the affidavit of Joy Jones, who asserts that Respondent resides in a Section 8 HUD subsidized building, and that her share of the rent was $25.00 per month. Petitioner further asserts that in June 2010, Respondent lost her subsidy for failure to re-certify, and Petitioner failed to adjust her account until September 2010. The affidavit refers to an annexed rent history, but no such rent history is annexed to either one of the two cross-motions filed by Petitioner.
The Court will consider both cross-motions as one consolidated cross-motion by Petitioner.
Ms. Jones further asserts that Respondent actually owed $3117.94 through August, and that Respondent subsequently re-certified and that her rent would be reduced as of November 2010. Also annexed to Petitioner's cross-motion are copies of three letters to Respondent, from February, March and April 2010 requesting that Respondent appear for her re-certification.
It is well settled that Courts favor stipulations and they will not lightly be set aside (Hallock v. State of NY 64 N.Y.2d 224). This is particularly true where party seeking to vacate the stipulation was represented by counsel at the time the stipulation was entered (Town of Clarkstown v. MRO Pump & Tank, Inc. 287 A.D.2d 497). However, a stipulation will be vacated on the basis of mutual mistake, if a party can show that the mutual mistake existed at the time of the stipulation, and that the mistake is so substantial that the stipulation does not represent a true meeting of the minds ( Litvinov v. Hodson 74 A.D.2d 1884 citing Carney v. Carozza 16 AD3d 867;Gro–Wit Capital Ltd v. Obigor LLC 33 AD3d 859). The party seeking to vacate the stipulation bears the burden of proving the mutual mistake by clear and convincing evidence (Vermilyea v. Vermilyea 224 A.D.2d 759).
“Where a mistake of fact is attributable to the negligence or carelessness of the party seeking to vacate a stipulation, and there has been no fraud or deceit on the part of the other party thereto, such a mistake will not constitute a basis to set aside the agreement [Waterside 1 LLC v. Christian, 13 Misc.3d 138(A), 2006 N.Y. Slip Op 52229(U)citing Da Silva v. Musso 53 N.Y.2d 543 and Lowe v. Steinman 284 Ad2d 506].” Thus in Waterside the Appellate Term affirmed the lower court's denial of a motion to vacate the stipulation in a nonpayment proceeding. The Appellate Term noted that the landlord had the opportunity to ascertain the correct amount of rent due, prior to the execution of the stipulation and “it cannot avoid the consequences of its own carelessness by seeking to have the stipulation vacated ( Id.).”
In the case at bar, Petitioner had the information available to it prior to entering into the stipulation. Petitioner failed to enter that information into its records or advise counsel of the alleged additional charges due. This does not create a basis to vacate a stipulation based on mutual mistake (Gro–Wit Capital Ltd v. Obligor, LLC 33 Ad3d 859 where information forming basis of alleged mistake was available to the party prior to entry of the stipulation there is no basis to vacate the stipulation based on mutual mistake ). Moreover, there is absolutely no showing that the mistake was mutual, and that Respondent was unaware of the failure to re-certify and additional charges sought at the time of the stipulation.
Nor would Petitioner's oversight in failing to assert the additional charges for September through November constitute a mistake so substantial that the stipulation entered did not represent a true meeting of the minds ( Id.)
Respondent relied upon the amount of arrears asserted by Petitioner, and applied for and received checks in exactly that amount, and would be prejudiced by a new claim for additional monies for the same period.
Finally, even if Petitioner had advised counsel of the additional sums claimed based on failure to re-certify, it is unclear if these sums would constitute rent subject to suit in a summary proceeding pursuant to RPAPL 711(2).
Based on the foregoing, Petitioner's cross-motion to vacate the August 25, 2010 stipulation on the grounds of mutual mistake is denied. Based on Respondent's default in appearing, her order to show cause dated November 10, 2010 is also denied.
This constitutes the decision and order of this Court.