From Casetext: Smarter Legal Research

Palace Renaissance, Inc. v. Sareb Rest. Corp.

Appellate Term of the Supreme Court of New York, First Department
Dec 29, 2005
2005 N.Y. Slip Op. 52162 (N.Y. App. Term 2005)

Opinion

570761/05.

Decided December 29, 2005.

Landlord appeals from an order of the Civil Court, New York County (Joan M. Kenney, J.), entered August 10, 2005, which vacated a stipulation of settlement and dismissed the petition in a commercial nonpayment proceeding.

Order (Joan M. Kenney, J.), entered August 10, 2005 reversed, without costs, tenant's motion to dismiss the nonpayment petition denied, the final judgment and warrant of eviction reinstated, and the matter remanded for calculation of the amount of base rent arrears due landlord.

PRESENT: McCooe, J.P., Davis, Gangel-Jacob, JJ


In this commercial nonpayment proceeding, the parties, with the advise of counsel, entered into a so-ordered stipulation of settlement in November 2001, whereby tenant consented to the entry against it of a judgment of possession and a money judgment for rental arrears and to issuance of a warrant "forthwith," with execution of the warrant stayed on condition that the tenant pay the amount of the judgment in monthly installments. Tenant also agreed to "[comply] with all monetary terms of the lease."

While tenant tendered payment of rental arrears each month, and paid the monthly base rent, it failed to pay the annual increases in monthly base rent due under the express terms of the lease. Landlord did not bill for base rent during the payment term and tenant's "flat rate" base rent payments continued until early 1995 when, after an internal audit, landlord discovered the discrepancy and demanded that tenant remit the rent deficiency.

Civil Court vacated the settlement stipulation, finding sufficient good cause in light of landlord's accounting practices and/or errors, and dismissed the nonpayment petition, finding that landlord "waived its right to collect the [base] rent escalations" over the years.

We reverse. In relieving tenant of the terms of the stipulation into which it had entered freely, knowingly and with the advise of counsel, Civil Court ran afoul of the long-established principle that "stipulations of settlement are favored by the courts and not lightly cast aside" unless there is cause sufficient to invalidate a contract, such as fraud collision, mistake or accident ( Hallock v. State of New York, 64 NY2d 224, 230). Tenant offered no valid excuse for its failure to tender the base rent increases due under the terms of the lease and stipulation. Nor did it contend that the stipulation was tainted by fraud, mutual mistake or any other basis for voiding a contract. Under these circumstances, good cause for vacating the stipulation and warrant of eviction was absent as a matter of law ( see City of New York v. 130/40 Essex Street Development Corp., 302 AD2d 292).

Giving proper effect to the "no waiver" provisions of the parties' lease agreement, we find that any delay by landlord in billing for the annual base rent increases undisputedly due under the lease does not support tenant's claims of waiver or laches ( see Goldstein v. City of New York, 159 AD2d 313, 315).

This constitutes the decision and order of the court.


Summaries of

Palace Renaissance, Inc. v. Sareb Rest. Corp.

Appellate Term of the Supreme Court of New York, First Department
Dec 29, 2005
2005 N.Y. Slip Op. 52162 (N.Y. App. Term 2005)
Case details for

Palace Renaissance, Inc. v. Sareb Rest. Corp.

Case Details

Full title:PALACE RENAISSANCE, INC., Petitioner-Landlord-Appellant, v. SAREB…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Dec 29, 2005

Citations

2005 N.Y. Slip Op. 52162 (N.Y. App. Term 2005)
814 N.Y.S.2d 563