Opinion
No. BALT 122–12.
2012-03-30
NU HORIZONS MANOR, Petitioner v. Mae ADDERLY a/k/a Mae Adderley, Respondent.
Stanley J. Somer, Esq., for petitioner. Mae Adderly, pro se.
Stanley J. Somer, Esq., for petitioner. Mae Adderly, pro se.
DAVID A. MORRIS, J.
ORDERED that this motion by the pro se respondent to modify or vacate the stipulation of settlement dated February 7, 2012 and, additionally, to vacate the judgment and warrant of eviction issued upon a default under the stipulation, is granted. The stipulation of settlement, the judgment and the warrant of eviction are hereby vacated and the matter is hereby restored to the landlord-tenant calendar for a hearing on the merits of the non-payment petition.
A non-payment petition was filed returnable on February 7, 2012 seeking rent arrears of $3,424.60, a judgment of possession and a warrant of eviction. On the return date the pro se respondent and petitioner's attorney entered into a stipulation of settlement on a court provided form. The terms of the stipulation of settlement were described on the record to the pro se respondent in accordance with RPAPL § 746. Under the terms of the stipulation the respondent acknowledged rental arrears in the sum of $4,069.66. The terms provide for the payment of the rental arrears as follows: “$1,155.00 by 5 pm on 2/7/12”; “$1,945.00 by 5 pm on 2/17/12” and “if paid balance of $969.66 to be paid $90.00 per month per separate agreement between parties dated 12/19/11”. The stipulation further provides that in the event the respondent fails to comply, then the petitioner would be entitled to a judgment for rent arrears and the immediate issuance of a warrant of eviction upon submission of an affidavit of non-compliance. There is no dispute that the respondent paid the initial payment due of $1,155.00 on February 7, 2012. Petitioner's counsel submitted an affirmation of non-compliance dated February 22, 2012 wherein he acknowledged the February 7th payment and acknowledged an additional payment of $300.00 on February 21, 2012, however, it was affirmed that the respondent had not fully complied with the payment due by February 17, 2012. Based upon the affirmation of non-compliance the court issued a judgment for rent arrears in the amount of $2,614.66, a judgment of possession, and a warrant of eviction on February 24, 2012. In the motion papers it is uncontroverted that the respondent made a third payment to petitioner in the amount of $855.00 on February 27, 2012. Hence, a total of $2,310.00 had been tendered and accepted by February 27, 2012. The court notes that the amount paid is equal to 67% of the rent arrears demanded in the non-payment petition ($3,424.60) whereas it is only equal to 57% of the rent arrears acknowledged in the stipulation of settlement ($4,069.66).
On or about March 8, 2012 the respondent sought rent payment assistance from the Family Service League which tentatively approved payment of specified amounts for rent arrears and future rent subsidies subject to verification forms being filed by the petitioner. A 72 hour notice on the warrant of eviction was served by the Suffolk County Sheriff on March 14, 2012. On March 15, 2012 the petitioner's agent submitted verification documentation to the Family Service League. On March 16, 2012 the court signed the underlying order to show cause staying execution of the warrant based upon the documentary proof submitted by the respondent. On March 27, 2012, the return date of the order to show cause, the parties submitted further documentation to the court. At the request of petitioner's counsel the court agreed to issue a written decision on the motion. The court has now had the opportunity to thoroughly review the entire contents of the court file.
It is well settled that enforcement of a stipulation of settlement remains subject to the supervision of the court (Malvin v. Schwartz, 65 A.D.2d 769 affd 48 N.Y.2d 693). This court is cognizant that stipulations of settlement are strongly favored and will not be lightly cast aside. Only upon a showing of 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 the course of litigation (Hallock v. State of New York, 64 N.Y.2d 224, 230;Byrne v. Nassau County Board of Elections, 307 A.D.2d 1953). In the court's opinion the respondent has established a predicate basis to invalidate the stipulation of settlement and, thus, to also vacate the judgment and warrant of eviction issued upon the stipulation of settlement. First, the stipulation provides for the payment of rental arrears in an amount which is $645.06 greater than the amount demanded in the non-payment petition. The verified petition, dated January 26, 2012, demanded the sum of $3,424.60 which included partial rent arrears for December 2011, January 2012 rent, late fees for December and January, bed bug fees, insufficient check charge, and legal fees. The amount of rent arrears agreed upon in the stipulation of settlement was $4,069.66. The stipulation of settlement makes no reference for the increased amount of rent arrears. The court file jacket and court calendar do not reflect a request by petitioner's counsel for leave to amend the non-payment petition to include any other rent or additional rent amounts. Moreover, it clearly appears that petitioner's counsel included in the stipulation of settlement additional rent amounts that petitioner would not necessarily have been entitled to under either the lease or the law. In this regard the non-payment petition seeks to recover $969.66 for “2011 treatment of bed bug fee per Agreement dated 12/7/11” [the stip refers to 12/19/11] and $40.00 for “January, 2012 insufficient check charge per paragraph 1”. If in fact such items are not characterized in the written lease agreement, allegedly entered into on or about September 1, 2011, as additional rents, then they are not recoverable in this summary proceeding (RPAPL § 711(2)). In a summary proceeding this court is only vested with jurisdiction to award rent and/or additional rent (Binghamton Housing Authority v. Douglas, 217 A.D.2d 897;see ATM Four LLC v. Demezier, 22 Misc.3d 1132(A)). The late payment charge [which is equal to 10% of the monthly rent], notwithstanding that such may be deemed additional rent under the lease, would only be recoverable if it represented the actual cost and expenses incurred by the petitioner ( see Maplewood Management v. Jackson, 113 Misc.2d 142;Spring Valley Gardens Associates v. Earle, 112 Misc.2d 786; Dashnaw v. Shiflett, 10 Misc.3d 1051(A)). Finally, although a lease may provide for reimbursement for reasonable attorney's fees incurred by petitioner as additional rent, only a prevailing party in a summary proceeding is entitled to recover attorney's fees and the amount of reasonable attorney's fees to be awarded is within the discretion of the court ( see Babylon Village Equities v. Mitchell, 11 Misc.3d 84;Acierno v. Faldich, 4 Misc.3d 98;V & J Inc., v. 2320 Route 112, LLC, 13 Misc.3d 30). It appears that attorney's fees were included in the stipulation of settlement.
While this court is loathe to invalidate a stipulation of settlement entered into during a landlord-tenant proceeding, it clearly appears that petitioner overreached on this particular stipulation with a pro se respondent and the court will not implicitly condone such conduct by enforcing the stipulation. At the time the stipulation was described on the record it was not compared to the non-payment petition to determine if it was consistent therewith. Obviously, amounts were included in the stipulation and the judgment which were neither included nor properly included in the non-payment petition. Since such amounts may not be recoverable either as rent or additional rent, and thus not within the jurisdiction of the court in this summary proceeding, the stipulation, judgment and warrant of eviction must be vacated. A trial will be held on the merits of the non-payment petition for a determination of the propriety of rent and additional rent due and owing herein (see Hines v. Ambrose, 26 Misc.3d 144(A); 2010 N.Y. Slip Op 50442(U) [App. Tm., 2nd Dept., 9th & 10th Jud. Dists.] ).
Accordingly, the motion to vacate the stipulation of settlement, the judgment and the warrant of eviction is granted in all respects. The matter shall be immediately restored to the landlord-tenant calendar for a hearing on the merits of the non-payment petition. All parties are directed to appear in this court on the new court date set forth below.