Opinion
2008-134 K C.
Decided February 11, 2009.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), dated June 4, 2007, deemed from a judgment of said court entered September 14, 2007 (see CPLR 5520 [c]). The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $11,462.93 as against defendant Ken Caldwell, and implicitly dismissed his counterclaims.
Judgment, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Plaintiff commenced this action to recover use and occupancy for the months of January 2002 through November 2002, at a monthly rate of $1,138, plus a balance of $986.18 for December 2001. Defendant Ken Caldwell (appellant) counterclaimed for, among other things, "a rent abatement." At trial, plaintiff proved that appellant had agreed, in two so-ordered stipulations dated May 14, 2002, in different proceedings, to pay use and occupancy at the level of $1,138 per month for the months sought, and had further agreed to waive and release all his claims against plaintiff. The court's award in favor of plaintiff of the principal sum of $11,462.93 was based on the $1,138 per month level of use and occupancy set forth in the stipulations. On appeal, appellant takes issue with the amount awarded plaintiff.
The court's award was properly based on the two so-ordered stipulations. We note that a previous motion by appellant to vacate the stipulations was denied by order dated September 23, 2002. While appellant filed a notice of appeal from said order, he failed to perfect the appeal, and his appeal was dismissed. We further note that, in any event, appellant has set forth no basis to invalidate either of the two stipulations ( see e.g. Hallock v State of New York, 64 NY2d 224; Matter of Frutiger, 29 NY2d 143). Therefore, there is no basis to disturb the judgment which was based on those stipulations. Appellant's remaining arguments are meritless.
Accordingly, the judgment, insofar as appealed from, is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.