Opinion
2011-2451 K C
03-21-2013
Noel Francis, Respondent, v. Georgia Allen, Appellant, and "JOHN DOE" and "JANE DOE", Undertenants.
PRESENT: : , P.J., WESTON and SOLOMON, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Phyllis K. Saxe, J.), dated June 27, 2011. The order denied tenant's motion to modify a stipulation of settlement.
ORDERED that the order is modified by providing that the denial of tenant's motion to modify the stipulation of settlement is without prejudice to tenant seeking that relief in a plenary action; as so modified, the order is affirmed, without costs.
In this nonpayment summary proceeding, a default final judgment was entered against tenant upon the failure of her attorney to appear for trial. Subsequently, the parties entered into a stipulation of settlement, signed by both attorneys, which provided, among other things, that the final judgment would stand and that execution of the warrant would be stayed to March 30, 2011 for tenant to pay all rental arrears in the sum of $16,160.77. Tenant did not make the required payment and was evicted. Thereafter, on or about April 8, 2011, tenant, by counsel, moved to modify the stipulation, arguing that there had been a mutual mistake in the calculation of the rental arrears, and landlord submitted opposition to tenant's motion. The Civil Court denied tenant's motion to modify the stipulation, finding that there was no showing of a mistake in the stipulation, which had been negotiated by attorneys on both sides.
Based upon the present record, the relief requested by tenant is not available by way of motion since the summary proceeding was terminated by tenant's eviction, as provided in the stipulation of settlement (see Teitelbaum Holdings v Gold, 48 NY2d 51, 53 [1979]; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435 [1928]; Church Extension Plan v Harvest Assembly of God, 79 AD3d 787 [2010]; Matter of Serpico, 62 AD3d 887 [2009]; Moshe v Town of Ramapo, 54 AD3d 1030 [2008]). Tenant's remedy, if she be so advised, is to commence a plenary proceeding to seek the requested relief (see Teitelbaum Holdings, 48 NY2d at 55; Matter of Serpico, 62 AD3d 887).
Accordingly, the order is modified by providing that the denial of tenant's motion is without prejudice to tenant seeking relief in a plenary action.
Pesce, P.J., Weston and Solomon, JJ., concur.