Opinion
No. 2014–588 K C.
04-16-2015
1796 NOSTRAND AVE., LLC, Respondent, v. Antoowe GABRIEL, Appellant.
Opinion
ORDERED that the order is reversed, without costs, tenant's motion, in effect, to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted, and the petition is dismissed.
In this holdover proceeding, the petition alleges that the tenancy was month to month and that the apartment is not subject to rent regulation because it is in a building containing fewer than six residential units. Tenant, whose name is Gabriel Antoine but who was sued herein as Antoowe Gabriel, appeals from an order of the Civil Court which denied his motion, in effect, to vacate a two-attorney stipulation of settlement in which he agreed to surrender the apartment in return for a waiver of arrears, and the final judgment entered pursuant to the stipulation.
While landlord may have been unaware, when it commenced this proceeding, of the facts giving rise to tenant's claim that the building is subject to rent stabilization, it has now been judicially determined that, contrary to landlord's claim in the petition, the building is subject to such regulation (1796 Nostrand Ave., LLC v. Monfiston, Civ Ct, Kings County, Jan. 23, 2014, Sikowitz, J., index No. 075198/2013, appeal withdrawn App Term, 2d, 11th & 13th Jud Dists, Aug. 25, 2014, appeal No.2014–1237 K C). Consequently, the order is reversed, tenant's motion is granted and the petition is dismissed, based on the misstatement in the petition of the apartment's regulatory status and the resulting prejudice to tenant, since tenant is not subject to removal as a month-to-month tenant (see Park Props. Assoc., L.P. v. Williams, 38 Misc.3d 35 [App Term, 9th & 10th Jud Dists 2012] ).
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.