Opinion
2005-503 Q C.
Decided February 2, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Margaret Parisi McGowan, J.), dated January 12, 2005. The order granted a motion by tenant by vacating a final judgment and warrant.
Order modified by providing that tenant's motion is granted only to the extent of vacating the warrant; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
Housing Court, upon finding that tenant had substantially complied with its prior order of November 22, 2004, which stayed execution of the nonpayment warrant until December 22, 2004 for tenant to pay $3,642.27, properly should have vacated only the warrant and not the final judgment. We note that landlord's notice of appeal from the Housing Court's January 12, 2005 order does not bring up for review the propriety of the Housing Court's November 22, 2004 order, and we decline to review said order since the final judgment has been satisfied ( see Chan v. Sheppard, 2002 NY Slip Op 40521[U] [App Term, 2d 11th Jud Dists]; Hollis Gardens Realty Corp. v. Stewart, NYLJ, June 6, 2001 [App Term, 2d 11th Jud Dists]; 10A Carmody-Wait 2d § 305; see also Matter of Yamoussa M., 220 AD2d 138, 142). Thus, landlord's contentions on appeal, which relate to the propriety of the earlier order, have not been considered.
Pesce, P.J., and Golia, J., concur.
Weston Patterson, J., dissents in a separate memorandum.
Unlike the majority, I would review the propriety of the Housing Court's November 22, 2004 order, which stayed execution of the warrant until December 22, 2004 for tenant to pay all arrears, because the January 12, 2005 order necessarily encompassed the November 22, 2004 order ( see Adelphi Enterprises v. Mirpa, Inc., 33 AD2d 1019).
In my view, no good cause existed to vacate the warrant of eviction. Tenant, with the benefit of counsel, negotiated a binding stipulation whereby she agreed, among other things, to pay arrears of $4,517.18. Such stipulations of settlement "are favored by the courts and are not lightly cast aside" ( Hallock v. State of New York, 64 NY2d 224, 230 [citations omitted]). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" ( id. at 230). Here, tenant offered no valid excuse for her failure to honor the terms of the stipulation, nor did she allege any basis for invalidating the stipulation. Thus, as a matter of law, no good cause existed to vacate the stipulation and the warrant of eviction ( see City of New York v. 130/40 Essex St. Dev. Corp., 302 AD2d 292 [1st Dept 2003]).