Opinion
2002-1376 K C.
Decided December 17, 2003.
Appeal by Jovani Diaz from an order of the Civil Court, Kings County (G. Marton, J.), entered September 19, 2002, denying his motion to vacate the final judgment, warrant of eviction and stipulation.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
The parties to this holdover summary proceeding entered into a "so-ordered" stipulation, in April 2002, which provided for the entry of a final judgment in favor of landlord and the issuance of a warrant of eviction with execution thereof stayed on condition that tenant, inter alia, pay off the $8,400 in arrears she owed landlord pursuant to a specified payment schedule. Tenant failed to make her scheduled July and August payments, and landlord sought to execute the warrant. Thereafter, Jovani Diaz, sued herein as John Doe (hereinafter appellant) moved to vacate the final judgment, warrant of eviction and stipulation, which motion was denied.
A review of the record indicates that appellant has not presented sufficient evidence establishing that the stipulation was the result of fraud, collusion, mistake or accident sufficient to warrant vacatur thereof ( see e.g., Matter of Marquez, 299 AD2d 551). Moreover, since appellant failed to raise her allegations regarding repairs, abatement, etc., prior to the execution of the stipulation, said claims have been waived ( see e.g., 433 W. Assocs. v. Murdock, 276 AD2d 360, 361). Consequently, having stipulated to the final conclusion of this holdover proceeding, appellant should not be heard to complain regarding the result of tenant's default in abiding by the terms of the stipulation ( see 133-24 Sanford Avenue Realty v. Phipps, NYLJ, Nov. 21, 1990 [App Term, 2d 11th Jud Dists]; Trump Village. Section 3, Inc. v. Resnick, NYLJ, Mar. 7, 1990 [App Term, 2d 11th Jud Dists]).
Appellant's remaining contentions also lack merit.