Opinion
LT-001899-19NA
11-20-2019
FREEPORT HOUSING AUTHORITY, Petitioner(s), v. Shawanna FLEMING, Tynisha Yearwood, John Doe and Jane Doe, Respondent(s).
The Sklavos Law Group, P.C., Attorneys for Petitioner, 375 N. Broadway, Suite 208, Jericho, New York 11753, 516-248-4000; Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondents, 1 Helen Keller Way, Hempstead, New York 11550-3980, 516-292-8100.
The Sklavos Law Group, P.C., Attorneys for Petitioner, 375 N. Broadway, Suite 208, Jericho, New York 11753, 516-248-4000;
Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondents, 1 Helen Keller Way, Hempstead, New York 11550-3980, 516-292-8100.
Scott Fairgrieve, J. Petitioner, the administrator of a public housing complex known as Moxey Rigby, commenced this holdover proceeding on or about April 4, 2019, to recover possession of the premises located at 20 Albany Ave, Apt 3E in Freeport, New York. Petitioner seeks a money judgment against respondents for rent arrears, and an award for the fair value of use and occupancy for the period after March 31, 2019.
On May 7, 2019, petitioner, through counsel, entered into a stipulation of settlement with respondent Shawanna Fleming, who appeared pro se , (hereinafter referred to as "respondent"). Respondent agreed, inter alia, to pay all arrears due and owing and to vacate the premises by July 15, 2019. As respondent did not vacate, she was served with a 72-hour notice to vacate on August 30, 2019.
Respondent now moves by order to show cause, pursuant to CPLR 5015(a)(1), 24 CFR 966.4(e)(8), 24 CFR 966.4(I)(3)(C)(ii), and CPLR 3211(a)(1) and (7), for an order: 1) to vacate the May 7, 2019 Stipulation of Settlement; 2) to vacate the judgment of possession and warrant of eviction; and 3) to dismiss the petition in its entirety. Respondent's application is decided as provided herein. Background
Respondent Fleming alleges that she has been a tenant of the subject premises for 20 years. She states that in January 2019, petitioner inspected her apartment and determined that it needed painting. By letter dated January 24, 2019, respondent asserts she was notified that repair work was required in her apartment and that maintenance staff would commence work on January 29, 2019 (see Respondent's Exhibit A). Respondent was not required to be present for the repairs. The letter stated that maintenance staff would enter the apartment, complete the repair, and leave a notice that they were there. Respondent contends that although she waited all day for the painters, no one came.
Respondent claims that on February 4, 2019, painters came to her apartment without prior notice. As she was not prepared that day, she informed them that she would do the painting herself. Respondent explains that she was served with a Ten Day Notice to Cure ("Ten Day Notice"), that same day, alleging that she was "violating substantial obligations" of her tenancy by "failing to comply with the Housekeeping Standards of the Freeport Housing Authority Lease Part 1 paragraphs IX (e, f, and cc) for failing to maintain a clean, safe, and sanitary apartment and XVII(6) for creation of physical hazards in the unit; and Lease Part 2 paragraph 11 for failing to comply with the Housekeeping Standards Policy; and for failing to allow access to said apartment for repairs after proper notice from Landlord" (see Respondent's Exhibit C).
According to the Ten Day Notice respondent was to cure the breach on or before February 19, 2019. Failure to do so would result in termination of her tenancy. On or about February 27, 2019, respondent received a Notice to Tenant on Non-Renewal of Lease, Termination of Tenancy and Intention to Recover Possession ("Termination Notice") terminating her tenancy as of March 31, 2019.
On or about April 5, 2019, petitioner commenced this holdover proceeding. In addition to the claims set forth in the Ten Day Notice and the Termination Notice, the petition alleges that respondent owes rent arrears in the amount of $1,504.00.
On May 7, 2019, respondent entered into a Stipulation of Settlement with petitioner, wherein she agreed to a judgment of possession and a warrant of eviction against her. According to the terms of the stipulation, the warrant of eviction was stayed until July 15, 2019, at which time respondent agreed to pay all outstanding rent through May 2019, in the amount of $1,535.07, and to vacate the premises. Petitioner agreed to waive use and occupancy for June 2019 and July 2019, if respondent timely vacated the premises. The Stipulation of Settlement further provided that failure to pay outstanding rent would result in the entry of a money judgment against her, and her failure to vacate would increase the judgment by $376.00 per month for June, July, and any other month she continued to occupy the premises (see Respondent's Exhibit H).
On or about July 5, 2019, respondent, along with other tenants in the building, was served with a 90 Day Notice to Vacate. The notice advised her to vacate the premises by October 5, 2019, so that it could be demolished (see Respondent's Exhibit I). It also indicated that respondent would be provided with comparable housing. On or about August 16, 2019, respondent received a final notice to attend a mandatory briefing on September 5, 2019, at 10:30 a.m., so that she could be relocated to the new project-based housing complex. Respondent states that receipt of these notices led her to believe that petitioner was no longer pursuing the subject holdover proceeding and subsequent stipulation of settlement. However, on August 30, 2019, respondent was served with a 72-hour notice to vacate.
Discussion
It is well settled that stipulations of settlement are favored by the courts and are not lightly cast aside (see Hallock v. State of New York , 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). Adherence to this rule allows for the efficient resolution of disputes and maintains the integrity of the litigation process ( id. at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ).
Typically, a stipulation will not be vacated or set aside "without a showing of good cause, such as fraud, collusion, mistake, accident, or some other ground of the same nature" ( Campbell v. Bussing , 274 A.D. 893, 82 N.Y.S.2d 616 [2d Dept. 1948] ). Good cause to vacate a stipulation of settlement is demonstrated where it appears that a party has "inadvertently, inadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to [her] prejudice" ( Matter of Frutiger , 29 N.Y.2d 143, 150, 324 N.Y.S.2d 36, 272 N.E.2d 543 [1971] ). "Where both parties can be restored to substantially their former position the court, as a general rule, exercises such power if it appears that the stipulation was entered into unadvisedly or that it would be inequitable to hold the parties to it" ( id. )(internal citations omitted). Thus, " ‘the discretion of the court is not that closely confined [to the grounds commonly cited]’ and an unjust stipulation should be vacated when the parties may be returned to their former status" (see Morris I LLC v. Baez , 62 Misc. 3d 1227[A], 2019 WL 1142778, *2 [Civ. Ct., New York County 2019] ).
In moving to vacate the Stipulation of Settlement, respondent, who is now represented by counsel, argues that she was unrepresented when she entered into the agreement with petitioner, who was represented by counsel. She further avers that she was unaware of her defenses at that time. Respondent explains that she could not afford a private attorney and did not know about Law Services or its presence in court until her pastor informed her about them following her receipt of the 72-notice to vacate. Respondent states that she unadvisedly and improvidently entered into the stipulation, agreeing to leave her home of 20 years.
More importantly, respondent asserts that the Stipulation of Settlement contains incorrect information regarding the amount of rent owed. Specifically, respondent argues that the money judgment she agreed to, which represented all rent allegedly owed through May 2019, impermissibly included non-rent charges. It also failed to credit her for the month of February 2019. Annexed to respondent's order to show cause as Exhibits E and F, are proof of the February payment. Respondent also annexes a copy of the Tenant Historical Ledger Report ("Ledger Report"), which shows that the rent charge for each month is $366.00. It also shows that respondent is separately, and impermissibly, charged $10.00 per month for utilities and various miscellaneous charges, which all appear to be included in the money judgment (see Respondent's Exhibit C) (see Binghamton Housing Authority v. Douglas, 217 A.D.2d 897, 630 N.Y.S.2d 144 [1995] ); see generally Watertown Housing Authority v. Kirkland , 2 Misc. 3d 280, 766 N.Y.S.2d 790 [Watertown City Court 2003] ).
In opposition, petitioner's counsel essentially argues that absent a showing of fraud, duress, coercion, collusion, or any other grounds sufficient to warrant vacatur, by signing the stipulation of settlement, respondent is bound by its terms.
Here, however, this court finds good cause to vacate the stipulation of settlement. Respondent, now with the assistance of counsel, has demonstrated potentially meritorious defenses to the holdover proceeding against her. Based upon all of the foregoing, and under the particular circumstances presented here, this court vacates the stipulation of settlement, and the judgment of possession and warrant of eviction, which resulted therefrom.
Finally, turning to respondent's motion to dismiss the petition as defective under 24 CFR 944.4(e)(8) and 966.4(I)(3)(c)(ii), CPLR 3211(a)(7), same is denied. Contrary to respondent's assertion, both the Ten Day Notice and the Termination Notice apprised her of the grounds for petitioner's action in accordance with the aforementioned federal regulations. Moreover, both notices directed respondent to the applicable lease provisions alleged to have been violated, and informed her of her right to avail herself of petitioner's grievance procedure, as required under 24 CFR 944.4(e)(8) and 966.4(I)(3)(c)(ii). Furthermore, dismissal under CPLR 3211(a)(1), is also denied. While the documentary evidence proffered by respondent in support of her motion may establish a defense, "it does not resolve all factual issues as a matter of law to conclusivel[y] dispose of the [petitioner's] claims" (see 255 Butler Associates, LLC v. 255 Butler, LLC , 173 A.D.3d 655, 656, 102 N.Y.S.3d 699 [2d Dept. 2019] ).
Conclusion
In view of the foregoing, respondent's application to vacate the Stipulation of Settlement and the judgment of possession and warrant of eviction, is granted. Respondent's motion to dismiss the petition is denied, in its entirety.
The parties are directed to appear in this matter for conference on December 11, 2019 at 9:30 a.m. in the Landlord Tenant Part, Room 280.
This constitutes the decision and order of the court.