Opinion
570766/03.
Decided October 15, 2004.
Petitioner appeals from an order of the Civil Court, New York County, dated November 22, 2002 (Michelle D. Schreiber, J.) which, after a hearing, granted a motion by respondent Frizzell to set aside a stipulation of settlement, vacate a warrant of eviction, and restore him to possession.
Order dated November 22, 2002 (Michelle D. Schreiber, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Civil Court appropriately exercised its discretion in vacating the stipulation settling the underlying nonprimary residence holdover proceeding. The hearing evidence, fairly considered, supports the court's express findings that respondent, the son of the departed rent controlled tenant, suffers from some form of "mental disability" that warranted the appointment of a guardian ad litem and that prevented him from fully understanding the situation confronting him or the significance of the stipulation, and that the attorney who negotiated and signed the stipulation ostensibly on behalf of both respondents had never spoken to or been retained by Frizzell. Nor is there cause to disturb the court's conclusion that the terms of the stipulation were "unduly harsh," since they required Frizzell to forfeit a properly pleaded and potentially meritorious succession defense for no real consideration. The court "possesses the discretionary power to relieve parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it." ( 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373, appeal dismissed 73 NY2d 868, citing Matter of Frutiger, 29 NY2d 143, 150.)
The court's further action in vacating the previously granted warrant of eviction and restoring Frizzell to possession is not directly challenged by petitioner on appeal and, in any event, was justified in the circumstances ( see Solack Estates, Inc. v. Goodman, 78 AD2d 512).
This constitutes the decision and order of the court.