Opinion
LT-003074-10.
Decided April 1, 2011.
Steven J. Baum, P.C., Attorneys for Petitioner, Amherst, New York, Nassau/Suffolk Law Services, Committee, Inc., Attorney for Respondent, Hempstead, New York.
The following named papers numbered 1 to 6 submitted on this motion on February 2, 2011 papers numbered
Notice of Motion and Supporting Documents 4 Order to Show Cause and Supporting Documents 1
Opposition to Motion 2, 5
Reply Papers to Motion 3, 6
The pro se respondent moved for an order staying the warrant of eviction and dismissing the petition. The petitioner submits an affirmation in opposition. The respondent, via Nassau Suffolk Law Services Committee, Inc., submitted a reply affirmation. Thereafter, the respondent by Nassau Suffolk Law Services Committee, Inc., moved for permission to conduct discovery. The petitioner opposed the respondent's motion. The respondent submits a reply affirmation.
This is a holdover summary proceeding stemming from a foreclosure, in which the petitioner and the respondent entered into a stipulation, whereby the parties agreed that the petitioner would be awarded a judgment of possession with a warrant of eviction, stayed until July 31, 2010. A warrant of eviction was thereafter issued.
The respondent, acting pro se, signed the stipulation of settlement.
As a general rule, stipulations will not be set aside absent a showing of good cause. Parties who sign a stipulation will ordinarily be bound by its terms absent showing of good cause such as fraud, collusion, mistake, accident, or some other wrongful act ( see In the Matter of the Estate of Truiger, 29 NY2d 143). It is not only public policy, but the policy of the Court to encourage agreements of settlement and compromise. The Court is mindful that to set aside final settlements of dispute which were entered into voluntarily, in open court, and clearly understood by all the parties involved would open the floodgate of potential abuse and endless litigation ( see Seventy-Second Street Properties, Inc. v. Woods, 67 Misc 2d 539). Furthermore, it is fundamental that an agreement, should not be disturbed in the absence of the most extraordinary and compelling reasons ( see Stewart v. Travelers Indem Co., 27 Misc 2d 883 [Supreme Court NY County 1961]).
The respondent's affidavit in support of her order to show cause states, inter alia, that she signed a stipulation agreeing to vacate the premises on July 31, 2010. It further states that she received a letter from Premiere Asset Service, dated July 6, 2010, which indicated that they were informed by HSBC Bank, that there was a "hold" on the "previous proceeding". The affidavit also stated that the letter received by Premiere Asset Service, indicated that finding housing by July 31, 2010 was no longer necessary at this time and that "once we have completed the process, you will be given 90 days in which to vacate". The letter from Premiere Asset Service was attached to the respondent's order to show cause. The respondent asserts that she stopped looking for housing in the belief that she would be notified when to vacate. The respondent claims that she was never notified to vacate, but received a "72 hour notice" instead. The petitioner asserts that the respondent does not state any grounds for vacating the stipulation or warrant of eviction. In fact, ¶ 9 of the stipulation of settlement states that the "occupants have read and understand this Agreement which is the sole agreement of the parties and may not be changed except by an express writing signed by owner or owner's attorneys extending or staying the vacate date". In reply, for the first time, the respondent, by Nassau County Law Services, claims that the petitioner lacks standing to maintain this proceeding. The respondent claims that Citigroup Global Markets Realty Corp. (hereinafter "Citigroup") assigned the "foreclosure" bid to HSBC Bank USA, the petitioner herein. The respondent claims that the assignment was defective because it was not executed by Citigroup or anyone authorized to do so on its behalf. Given the invalid assignment, the respondent posits that the petitioner lacks standing to maintain this proceeding.
The lack of standing argument was raised for the first time in reply and the petitioner did not have an opportunity to address this issue. Accordingly, the Court shall not consider the respondent's argument with regard to the petitioner's standing, raised improperly for the first time in reply ( see Anqwin v. SRF Partnership, LP , 28 AD3d 593 [2d Dept 2006]; Wright v. Cete K Technologies, Inc., 289 AD2d 569 [2d Dept 2001]). Furthermore, "issues of title can not be addressed in a summary proceeding, only in actions" ( Capolino v. Bua , 63 AD3d 1092 [2d Dept 2009]). The respondents were parties to the foreclosure action and had ample opportunity to raise this issue before the Supreme Court and failed to do so ( see RPAPL § 1353).
The Court holds that the respondent has not set forth good cause to set aside the stipulation of settlement. The respondent is bound by the stipulation of settlement. The letter received by the respondent did not alter the terms of the stipulation of settlement.
Accordingly, the respondent's motion for an order staying the warrant of eviction and dismissing the petition is denied.
In view of the foregoing, the respondent's motion to conduct discovery is denied.
All stays are hereby vacated. The eviction may proceed forthwith.
This constitutes the decision and order of this Court.
So Ordered