Opinion
2007-1549 K C.
Decided October 31, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), dated August 15, 2007. The order, insofar as appealed from, denied tenant's motion to vacate a final judgment awarding possession to landlord in a nonpayment summary proceeding, converted by stipulation into a holdover summary proceeding.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
In this proceeding, commenced as a nonpayment summary proceeding, the parties entered into a so-ordered stipulation of settlement on August 2, 2006 which provided, among other things, that landlord would be awarded a final judgment and that a warrant would be issued forthwith to be stayed until August 25, 2006 for tenant to pay the judgment amount of $6,639.56. Tenant failed to pay the judgment amount when due and thereafter brought on numerous orders to show cause (OSCs), which resulted in several additional stipulations of settlement. One of these, dated January 10, 2007, entered into after tenant had, as he conceded in the stipulation, been lawfully evicted, conditionally restored tenant to possession in return for his agreement to convert the matter to a holdover proceeding, to pay use and occupancy, and to vacate the apartment by June 30, 2007. In a subsequent stipulation, entered into on June 11, 2007 after tenant was again evicted on May 31, 2007 — according to landlord following another default — it was agreed that tenant would again be restored to possession and that all of the terms of the January 10, 2007 stipulation were to remain in effect, specifically including the provision that tenant would vacate by June 30, 2007. On July 24, 2007, tenant brought another OSC seeking to vacate the judgment. In support of this OSC, tenant stated that landlord was demanding rent owed by Section 8, had failed to timely complete the Section 8 paperwork, thus delaying release of the Section 8 money, and had illegally locked him out (presumably referring to his May 31, 2007 eviction).
By order dated August 15, 2007, the court, in effect, denied tenant's motion seeking to vacate the final judgment, but stayed execution of the warrant until September 28, 2007 to give tenant, who had now secured a Section 8 voucher, time to find another apartment. According to his brief, tenant was finally evicted on December 11, 2007. On appeal, tenant seeks, in essence, to reverse the order denying his motion to vacate the final judgment, to vacate the stipulations, to be restored to possession, and to be awarded damages for wrongful eviction.
To the extent that tenant seeks relief on appeal that he did not seek in the OSC which is being reviewed on appeal, his claims are not properly before this court and will not be considered ( see e.g. Albanese v Village of Freeport , 52 AD3d 550 ). The documents submitted by tenant on appeal are also dehors the record and will not be considered ( see e.g. Chimarios v Duhl, 152 AD2d 508).
The Civil Court, in its August 15, 2007 order, did not err in refusing to vacate the final judgment, since tenant had twice agreed by stipulation to vacate the premises. Settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract ( see e.g. Hallock v State of New York, 64 NY2d 224; Matter of Frutiger, 29 NY2d 143). In this case, tenant stipulated, in return for being restored to possession following a lawful eviction, to convert the matter to a holdover proceeding and to vacate the premises by June 30, 2007. Tenant did not demonstrate the existence of cause sufficient to invalidate the stipulations.
We further note that damages for wrongful eviction are not available in a summary proceeding ( see Saccheri v Cathedral Props. Corp. , 16 Misc 3d 111 [App Term, 9th 10th Jud Dists 2007]; Rucci Oil Co. v Rucci, 2003 NY Slip Op 50946[U] [App Term, 2d 11th Jud Dists 2003]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.