Opinion
Index No. LT-308208-22/NY Motion Seq No. 1
03-30-2023
254 Park Avenue South LLC Petitioner(s) v. Emest Sgroi Respondent(s)
Unpublished Opinion
Present: Tracy Ferdinand Judge
DECISION/ORDER
Hon. Tracy Ferdinand Judge
Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion for:
Restore
PAPERS
NUMBERED
Notice of Motion and Affidavits Annexed
__1 [NYSCEF 12-13]__
Order to Show Cause and Affidavits Annexed Answering Affidavits
__2 [NYSCEF 17]__
Replying Affidavits
__3 [NYSCEF 18]__
Exhibits
__ 1 a-b [NYSCEF 14-15]__
Stipulations
___
Other
___
Upon the foregoing cited papers, the Decision/Order in this Motion is as follows:
This summary non-payment proceeding was settled by a two-attorney stipulation in October 2022, wherein respondent agreed to pay $51,319.28 as rent due through October 2022 plus November and December rent on or before December 26, 2022. Petitioner agreed to correct certain conditions in the apartment.
Paragraph (7) of the stipulation provides in pertinent part:
"Upon default by either party, the instant proceeding may be restored to the calendar following notice to opposing counsel at least 8 days in advance of the hearing date, and the movant may seek appropriate relief."
Petitioner now moves for entry of a final judgment in the amount of $53,833.18 and issuance of a warrant of eviction based upon the respondent's default in payment. Respondent opposes arguing that the stipulation did not specifically reserve the right to seek entry of judgment if respondent defaulted and consequently, petitioner is not entitled to said relief.
The Appellate Term in Gloria Homes Apts. LP v Wilson, 47 Misc.3d 142[A], 2015 NY Slip Op 50665[U] [App Term 2015] reversed the lower court's entry of a judgment of possession holding:
"On this record, the court's finding that landlord was "entitled" to a final judgment of possession cannot be sustained. Manifestly, the stipulation at issue did not provide for the entry of judgment if tenant breached any of its provisions (see 133 Plus 24 Sanford Ave. Realty Corp, v. Xiu Lan Ni, 47 Misc.3d 55, 7 N.Y.S.3d 819, 2015 NY Slip Op 25059 [App Tem, 2d, 11th & 13th Jud Dists [2015]). Indeed, no legal basis was shown by landlord or identified by the hearing court for reading into the stipulation the ultimate remedy of eviction in the absence of specific language authorizing that result." Id. at 142.
While petitioner argues that entry of a judgment of possession is the "quite obvious.." remedy in the context of a summary non-payment proceeding where a respondent defaults on a stipulation, the reality is that is it not the only remedy. The negotiated remedy and relief could have been included in the stipulation. The fact remains, it was not.
In ML 1188 Grand Concourse LLC v Sha, 64 Misc.3d 1224[A], 2019 NY Slip Op 51237[U] [Civ Ct, Bronx County 2019] when faced with the almost identical argument, the court held:
"Petitioner is asking the Court to enforce the agreement as if it provided Petitioner the remedy of a judgment in the event of default when it does not. The parties here were both represented by counsel and have the right to chart their own litigation course. Trump v Trump (179 A.D.2d 201, 204, 582 N.Y.S.2d 1008, 1009 [1st Dep't 1992]), Under the facts and circumstances of this case it would be inappropriate for this Court to interpret the "appropriate relief' language of the default provision to include a judgment of possession for Petitioner, especially given the well-settled principle that courts do not look favorably upon the forfeiture of leases. 2246 Holding Corp v Nolasco (52 A.D.3d 377, 378, 860 N.Y.S.2d 516, 518 [1st Dep't 2008])." Id. at 1224.
Similarly, here the court declines to infer a right to judgment when that immediate, and absolute relief is not specified in the two-attorney stipulation.
Accordingly, petitioner's motion for a judgment and warrant is denied. This constitutes the Decision/Order of this Court.