Opinion
04-326, 570184/04.
Decided October 7, 2005.
Tenant, as limited by his brief, appeals from an order of the Civil Court, New York County, dated March 1, 2004 (Jean T. Schneider, J.) which granted landlord's motion for entry of possessory judgment and warrant of eviction based upon tenant's failure to comply with a "so-ordered" stipulation settling a holdover summary proceeding.
Order dated March 1, 2004 (Jean T. Schneider, J.) reversed, with $10 costs, and landlord's motion for a possessory judgment and warrant of eviction denied.
PRESENT: SUAREZ, P.J., DAVIS, SCHOENFELD, JJ.
In a so-ordered stipulation settling the underlying nonprimary residence holdover proceeding, the parties "amicably" agreed to enter into a rent stabilized vacancy lease in a rental amount which tenant "waive[d]" the right to challenge. The settlement stipulation also included detailed repair and access provisions, authorized either party to restore the case to the calendar "for any and all appropriate relief" upon a default, and provided that in the event that tenant failed to provide landlord with "unfettered access" to make necessary repairs "the relief requested may include any monetary damages sustained by [landlord] as a result of said failure." The terms of the stipulation — expressly providing for the landlord's recovery of money damages upon tenant's failure to provide access — cannot reasonably be construed to authorize the possessory remedy sought below by landlord ( see LaFrance Leasing L.P. v. Shepherd, 193 Misc 2d 665), particularly considering that the access and repair issues addressed in the stipulation were matters unrelated to the primary residence issue which initially gave rise to the litigation. In this posture, there is no basis for reading into the stipulation the ultimate remedy of eviction under the rubric of "any and all appropriate relief," in the absence of specific language authorizing that result.
This constitutes the decision and order of the Court.