WFHA Creston Ave., LP v. Ulerio

Full title: WFHA Creston Avenue, LP, Petitioner, v. Unise Ulerio, Respondent.

Court: Civil Court of the City of New York, Bronx County

Date published: Mar 13, 2019

67 Misc. 3d 1242 (N.Y. Civ. Ct. 2019)

2019 N.Y. Slip Op. 52187

129 N.Y.S.3d 241

Opinion

38703/18

03-13-2019

WFHA CRESTON AVENUE, LP, Petitioner, v. Unise ULERIO, Respondent.

Rosenblum & Bianco, LLP, 100 Merrick Road, Suite 306 East, Rockville Centre, NY 11570 & Unise Ulerio

Shorab Ibrahim, J.

Rosenblum & Bianco, LLP, 100 Merrick Road, Suite 306 East, Rockville Centre, NY 11570 & Unise Ulerio

The decision and order on this motion is as follows:

BACKGROUND & PROCEDURAL POSTURE

In this non-payment proceeding, WFHA Creston Avenue, LP ("Petitioner") and Unise Ulerio ("Respondent') settled the matter by stipulation dated September 20, 2018 ("Stipulation"). Pursuant to the terms of the stipulation, Respondent owed $9789.92 through September 2018 after paying $5000 in court. There are now two pending motions. On November 20, 2018, Respondent filed an Order to Show Cause ("OSC") alleging "I paid everything including Nov's rent" and "LL failed [sic] the repairs.¹ " The OSC was adjourned from December 5, 2018 to January 30, 2019 and then to March 8, 2019. Petitioner has cross-moved for an order amending, correcting or vacating the September 20, 2018 stipulation due to a mistake in the amount then due.

1 The court treats the attachments to the November 20, 2018 filing as Respondent's exhibit A-D.

DISCUSSION

The court takes note of several undisputed facts. Monthly rent for the premises is $1251.49.² Thus, through October 2018, Respondent owed $11,041.41. In October 2018, Petitioner received and credited exactly $11,041.41.³ The September 2018 balance was paid by HRA through a "One-Shot-Deal" grant.⁴ From this, the court reasonably infers that Respondent relied on the terms of the September stipulation. As such, it does not appear possible to place the parties in status quo ante. ( Mazzola v. CNA Ins Co. , 145 Misc 2d 896, 900-901, 548 NYS2d 610 [Civ Ct Queens County 1989] ; 104-106 E 81st St LLC v. O'Brien , 12 Misc 3d 1175(A), 824 NYS2d 764 [Civ Ct, NY County 2006]. Petitioner herein received every penny of arrears that it bargained for. Respondent relied on the stipulation to obtain the funds to keep her tenancy. Vacating the stipulation would subject Respondent to possible eviction although it was Petitioner that made the error. The equities demand the stipulation not be vacated.

2 See Petitioner's exhibit E—Rent Breakdown

3 id.

4 See 10/15/18 HRA repayment agreement attached as an exhibit to Respondent's OSC.

Further, it appears from Petitioner's submissions that the mistake made was entirely avoidable if normal care had been taken. ( Waterside 1 LLC v. Christian , 13 Misc 3d 138(A), 2006 NY Slip Op 52229(U) [App Term 2nd Dept 2006] (where a mistake of fact is attributable to the negligence or carelessness of the party seeking to vacate a stipulation, and there has been no fraud or deceit on the part of the other party thereto, such a mistake will not constitute a basis to set aside the agreement)). The law suggests the stipulation should not be vacated.

Additionally, it is unclear whether the motion is supported with an affirmation from the attorney who made the math error, the breakdown used in preparing the September stipulation is absent and there are clear misstatements in Petitioner's papers.⁵

5 The court notes Respondent paid October 2018 rent on October 2, 2018 and the balance of arrears through October 2018 before October 31. These payments were timely under the September 2018 stipulation. Thus, Petitioner's statement that "the Respondent failed to timely pay the arrears and was served with a Marshal's Notice" is not supported by the facts. See par. 6 of both Mr. Danisi's affirmation and Ms. McWatt's affidavit.

CONCLUSION

Under the unique circumstances of this case⁶ , the court declines to amend, correct or vacate the September stipulation. Consequently, Petitioner's motion is denied in all respects. Respondent's Order to Show Cause is granted to the extent that the judgment and warrant are vacated and the proceeding dismissed as arrears pursuant to the September 2018 stipulation have been paid. To the extent that any alleged repairs remain to be done inside the subject apartment, Petitioner is directed to complete them within (30) days of receipt of this Decision/Order provided adequate access is granted.

6 This court contemplates many scenarios where a stipulation containing a mistake might be vacated.
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SO ORDERED,