Opinion
69001/2017
08-07-2019
ML 1188 GRAND CONCOURSE LLC, Petitioner-Landlord, v. JAHAN MIAH SHA, Respondent-Tenant.
Petitioner's Attorneys Lazarus, Karp, LLP Seven Penn Plaza 370 Seventh Avenue, Suite 720 New York, New York 10001 (212) 564-1250 Respondent's Attorneys Nicole Kalum, Esq. Bronx Legal Services 349 East 149th Street, 10th floor Bronx, New York 10451 (347) 592-2485
Petitioner's Attorneys
Lazarus, Karp, LLP
Seven Penn Plaza
370 Seventh Avenue, Suite 720
New York, New York 10001
(212) 564-1250
Respondent's Attorneys
Nicole Kalum, Esq.
Bronx Legal Services
349 East 149th Street, 10th floor
Bronx, New York 10451
(347) 592-2485
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner's motion to restore case to calendar for a judgment and for other relief:
PapersNumbered
Notice of Motion With Supporting Affidavit & Exhibits A-B 1
Affirmation in Opposition & Exhibits A-D2
PROCEDURAL HISTORY
This is a Nonpayment Proceeding which first appeared on the calendar in Resolution Part E on January 19, 2018. After numerous adjournments and unsuccessful settlement negotiations between the parties and their respective counsel, the case proceeded to trial on November 14 and December 6, 2018. By Decision and Order dated March 28, 2019 the Court granted Respondent's motion for judgment as a matter of law pursuant to CPLR § 4401, dismissed the Petition and adjourned the case to May 14, 2019 for a hearing on Respondent's counterclaims.
On May 14, 2019, the parties through their respective counsel entered into a Stipulation of Settlement with the following provisions:
• ¶ 1 - Petitioner's allegation that Respondent owes rent arrears of $23,460.33 through May 31, 2019.
• ¶ 2 - Petitioner's agreement to abate the rent by $6,000 to settle Respondent's warranty of habitability claims to date, thereby reducing the arrears to $17,460.33.
• ¶ 3 - Respondent's agreement to pay $17,460.33 by May 31, 2019.
• ¶ 4 - Petitioner's agreement to make repairs, with access on May 22 and May 23 and a default clause that "Respondent can restore for further abatement of rent and other appropriate relief as determined by the Court" if repairs are not completed.
• ¶ 5 — A default provision: "Upon default of any of the above provisions by either party, this matter may be restored to the court calendar upon 8 days' notice of motion for appropriate relief to be determined by the Court."
• ¶ 6 — Any ambiguities in the agreement are not to be resolved against the drafter.
Petitioner now moves to restore the proceeding to the Court's calendar; to amend the Petition to date; and for the Court to issue a possessory judgment and a money judgment in the amount of $20,881.29. As explained in the supporting affidavit of Petitioner's agent John Milevoi, the money judgment requested is comprised of the amount stated in the May 14, 2019 Stipulation plus rent of $1681.42 for June (comprised of the rent due minus $250 received from public assistance) and $1931.42 for July 2019. At oral argument, Petitioner's attorney argued that under the case of New Horizons Preserv LP v. Korngay (46 Misc 3d 1217[A], 9 NYS3d 594 [Civ Ct NY Co 2015] ), the Court should find that a final judgment in Petitioner's favor falls within the scope of the "appropriate relief" clause of the default provision.
Respondent opposes by the affirmation of his attorney, who argues that Petitioner is not entitled to a judgment or amendment of the Petition to date because the Petition was dismissed after trial and the default provision of the Stipulation of Settlement does not give Petitioner the right to restore for a judgment. Respondent's attorney also asserts that Petitioner is not entitled to a judgment because it failed to repair any of the conditions listed in the stipulation. Alternatively, Respondent argues that the Court should not issue a final judgment because there is no "current rent" provision in the stipulation and the rent breakdown annexed to Petitioner's motion papers is not accurate. Respondent also asks that the case be restored to the court's calendar for an abatement hearing.
DISCUSSION
To decide Petitioner's motion the Court must interpret the phrase "appropriate relief to be determined by the Court" in the fifth paragraph of the May 14, 2019 Stipulation of Settlement. The decision cited by Petitioner's attorney, New Horizons Preserv LP v. Korngay (46 Misc 3d 1217[A], 9 NYS3d 594 [Civ Ct NY Co Feb 9, 2015] ), involved a nuisance holdover, in which the parties entered into a stipulation of settlement in which Respondent agreed not to commit or permit any of the acts alleged in the notice of termination and to pay arrears. The agreement also included a default provision under which Petitioner could restore for "appropriate relief" within one year if Respondent defaulted. Petitioner initially moved for a money judgment based on Respondent's failure to pay the arrears as agreed. That motion was settled by a stipulation "wherein Respondent agreed to pay" a stated amount by a date certain. Several months later Petitioner moved to restore the proceeding for a judgment of possession based upon allegations that Respondent had engaged in behavior that violated the settlement agreement. The court initially granted the motion to the extent of setting it down for a hearing and then, following a hearing, found that Petitioner was entitled to a final judgment of possession. The court stayed issuance of the warrant of eviction for ten days pursuant to RPAPL § 753(4) to afford Respondent an opportunity to cure by taking certain specified actions and otherwise restored Respondent to the terms of the one-year probationary agreement, with the proviso that in the event of a failure to cure or a further breach by Respondent during the time remaining, Petitioner could move for issuance of the warrant.
There are several reasons why the New Horizons decision does not dictate the outcome here. First, shortly after that decision was issued, the Appellate Terms of both the First and Second Departments issued decisions finding there to be no entitlement to a final judgment of possession on a motion to restore for breach of a stipulation of settlement where there was no provision in the parties' agreement for such relief to be granted upon default.
In Gloria Homes Apts LP v. Wilson (47 Misc 3d 142[A], 17 NYS3d 382 [App Term 1st Dep't May 7, 2015] ), the lower court had found that the petitioner-landlord was entitled to a final judgment of possession in a nuisance holdover proceeding which had been settled by a stipulation that contained a default provision permitting the landlord to "restore for immediate hearing on the sole issue of violation of this stipulation". The Appellate Term reversed and remanded, ruling that the lower court's finding that the landlord was "entitled" to a final judgment of possession could not be sustained. The Court went on to say,
‘‘Manifestly, the stipulation at issue did not provide for the entry of judgment if tenant breached any of its provisions. Indeed, no legal basis was shown by landlord or identified by the hearing court for reading into the stipulation the ultimate remedy of eviction in the absence of specific language authorizing the result. The hearing did not focus on this particular question and no specific findings were made as to the parties' intent. Since the parties' intent is not clear from the face of the stipulation, the hearing court should have made findings on the issue.’’
In 133 Plus 24 Sanford Ave Realty Corp v. Xiu Lan Ni (47 Misc 3d 55, 7 NYS3d 819 [App Term 2nd Dep't Feb 23, 2015] ), a commercial holdover proceeding, the lower court had denied the landlord's motion for entry of a final judgment of possession and issuance of a warrant of eviction based on the tenant's failure to comply with the stipulation of settlement. In affirming this part of the lower court's order, the Appellate Term explained,
‘‘The law requires strict construction of language in written instruments that could work a forfeiture ( Lerner v. Johnson, 167 AD2d 372, 375, 561 NYS2d 601 [1990] ). Here, there was no provision in the stipulation which provided for the entry of a final judgment based upon a default under the stipulation. In the absence of such a provision, landlord is not entitled to a final judgment of possession based upon a breach of the stipulation (see Chuang v. Quezada, 6 Misc 3d 1023[A], 800 NYS2d 344, 2005 NY Slip Op 50166[U] [Civ Ct Kings County 2005] : cf. Spring Close LLC v. Players Rest. Group Inc., 7 Misc 3d 130[A], 801 NYS2d 242, 2005 NY Slip Op 50539[U] [App Term, 2d Dep't, 9th & 10th Jud Dists 2005] ).’’
Second, none of the three cases discussed above involve the scenario presented here, where the underlying case had been dismissed at trial and then set down for a hearing on Respondent's counterclaims which were then settled rather than tried. The dismissal of the Petition here leaves nothing before the Court upon which to enter a judgment, given the absence of an explicit agreement otherwise.
Third, while Petitioner's ability to restore the case for a judgment in the event Respondent failed to make the agreed-upon payment might have been negotiated and included, the fact is that no such language appears in the parties' agreement, nor is Petitioner foreclosed from seeking that relief in another proper proceeding. A Stipulation of Settlement is a contract between the parties to the litigation and is, therefore, governed by principles of contract law for interpretation and effect. Caruso v. Ward (146 AD2d 22, 29-30, 539 NYS2d 313, 317 [1st Dep't 1989] ). Applicable here is the well-established "doctrine of definiteness or certainty". As explained by the Court of Appeals, under this doctrine,
‘‘a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to (see, 1 Corbin, Contracts § 95, at 394). As we noted recently in Cobble Hill, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (74 NY2d, at 482, citing Martin Delicatessen v. Schumacher, 52 NY2d, at 109 ; Restatement [Second] of Contracts § 33 [1981] ). 166 Mamaroneck Ave Corp v. 151 East Post Rd Corp (78 NY2d 88, 91, 575 NE2d 104, 105, 571 NYS2d 686, 687 [1991] ).
Petitioner is asking the Court to enforce the agreement as if it provided Petitioner the remedy of a judgment in the event of default when it does not. The parties here were both represented by counsel and have the right to chart their own litigation course. Trump v. Trump (179 AD2d 201, 204, 582 NYS2d 1008, 1009 [1st Dep't 1992] ). Under the facts and circumstances of this case it would be inappropriate for this Court to interpret the "appropriate relief" language of the default provision to include a judgment of possession for Petitioner, especially given the well-settled principle that courts do not look favorably upon the forfeiture of leases. 2246 Holding Corp v. Nolasco (52 AD3d 377, 378, 860 NYS2d 516, 518 [1st Dep't 2008] ).
CONCLUSION
Accordingly, Petitioner's motion for a final judgment and issuance of a warrant of eviction is denied. The affirmative relief requested in the "Wherefore" clause of Respondent's attorney's affirmation in opposition is denied as it was neither supported by the affidavit of someone with personal knowledge nor presented as part of a cross-motion.