17-406. 502 WEST 152ND STREET, LLC, pet-lan-app, v. MOHAMMED SOUMAHORO, res-ten-res — Order (Sabrina B. Kraus, J.), dated August 3, 2016, reversed, without costs, and tenant’s motion denied. Execution of the warrant shall be stayed for 30 days from the service of a copy of this order with notice of entry.Civil Court erred in concluding that tenant was unlawfully evicted. The record establishes that tenant was legally evicted after repeatedly failing to comply with the unambiguous “time is of the essence” payment provision of the stipulation executed in settlement of the underlying chronic rent delinquency holdover proceeding (see Henry Hudson Gardens, L.L.C. v. Bareda, 25 AD3d 466 [2006]). “Strict enforcement of the parties’ stipulation…is warranted based upon the principle that the parties to a civil dispute are free to chart their own litigation course” (Mill Rock Plaza Assoc. v. Lively, 224 AD2d 301 [1996]). We also note that the marshal’s notice was re-served after the Court’s June 30, 2016 denial of tenant’s prior motion to vacate his default under the stipulation.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 12, 201817-418. SHARON BROWN, pet-lan-res, v. KIMBERLY FELTON, res-ten-app, -and- JOHN DOE AND JANE DOE, res — Final judgment (Miriam M. Breier, J.), entered on or about June 1, 2017, affirmed, with $25 costs.Although this holdover proceeding was brought by landlord within six months after tenant’s complaint to HPD regarding conditions in the subject apartment, the trial evidence, fairly interpreted, supports the finding that landlord had a non-retaliatory motive for commencing the proceeding. The record shows and the trial court found that tenant’s unregulated lease agreement expired by its terms, and landlord terminated the ensuing month-to-month tenancy in November 2016 because “[tenant] ha[d] no lease and has failed to pay her portion of the rent since October 2015″ (see Real Property Law §§223-b[1],[5]; 339-347 E. 12th St. LLC v. Ling, 35 Misc 3d 30, 31 [2012]; Springfield Missionary Baptist Church v. Dawson, 22 Misc 3d 130[A], 2009 NY Slip Op 50128[U] [App Term, 1st Dept 2009]; Gelmo Realty v. Fiore, 1 Misc 3d 129[A], 2003 NY Slip Op 51570[U] [App Term, 9th & 10th Jud Dists 2003]). These findings, resting in large measure on considerations relating to the credibility of witnesses, are entitled to deference on appeal (see Thoreson v. Penthouse Intl., 80 NY2d 490, 495 [1992]).Nor did tenant establish that landlord’s acceptance of certain DSS rent checks constituted a waiver of the right to maintain this proceeding. We take judicial notice that this holdover proceeding was commenced on December 8, 2016 (see CCA 400; ABN Assoc., LLC v. Citizens Advice Bur., Inc., 27 Misc 3d 143[A], 2010 NY Slip Op 51075[U] [App Term, 1st Dept 2010]). Inasmuch as landlord had the right to accept rent after commencement of the proceeding (see RPAPL §711[1]), its acceptance of a DSS rent check dated December 10, 2016, did not constitute any waiver (see Oppenheim v. Spike, 107 Misc 2d 55, 57 [1980]). The DSS rent check dated November 25, 2016, which was accepted by landlord before commencement of the proceeding, was properly applied to the then-current, pre-termination (November 2016) rent.We have considered tenant-appellant’s remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 12, 201817-410. JMW 75 LLC, pet-lan-app, v. CLAUDE DEBS AND VIOLAINE GALLAND, res-ten-res, -and- “JOHN DOE” AND “JANE DOE,” res-unt — Appeal from order (Michelle D. Schreiber, J.), dated October 11, 2016, deemed an appeal from the ensuing final judgment (same court and Judge), entered October 28, 2016, and so considered (see CPLR 5520[c]), final judgment affirmed, with $25 costs.We perceive no ground to relieve landlord from payment of the liquidated damages to which its predecessor agreed in a prior so-ordered stipulation (see Grant v. 30 E. 85th St. Condominium, 288 AD2d 92, 93 [2001]). “Where the parties, both represented by counsel, have freely entered into a stipulation of settlement in open court, such stipulation will generally be enforced unless public policy is affronted, that is, where judicial enforcement of such an agreement would be the approval of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense” (1420 Concourse Corp. v. Cruz, 135 AD2d 371, 372 [1987], appeal dismissed 73 NY2d 868 [1989]; see Hallock v. State of New York, 64 NY2d 224 [1984]). “Unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course and, in fashioning the basis upon which a particular controversy will be resolved, they may stipulate away statutory and even constitutional rights” (1420 Concourse Corp. v. Cruz, 135 AD2d at 372, citing Mitchell v. New York Hosp., 61NY2d 208, 214 [1984]).Landlord’s contention that the liquidated damages provision constitutes an unenforceable penalty is unavailing. The liquidated damages clause was a bargained-for element in a multi-faceted so-ordered stipulation, which was the culmination of extensive arm’s length negotiations between the parties, each represented by able and experienced counsel. Such an agreement is entitled to deference (see Addressing Sys.& Prods., Inc. v. Friedman, 59 AD3d 359, 360 [2009]).Among other things, the agreement acknowledged tenants’ rent stabilized tenancy in five contiguous SRO units and provided landlord with an option to terminate the tenancy in exchange for payment of $3,500,000. The stipulation further provided that in the event landlord terminated the tenancy for nonpayment of rent, nuisance or breach of the lease, and obtained possession, tenants were not entitled to the $3,500,000 payment; however, if landlord attempted to terminate the lease on such grounds and failed, landlord was required to pay tenants the liquidated sum $250,000. The fact that the liquidated damages clause was designed to discourage landlord from bringing baseless proceedings in an effort to avoid the buyout obligation does not transform such provision “into a penalty merely because [it] operate[s] in this way as well, so long as [it is] not grossly out of scale with foreseeable losses” (Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 NY3d 115, 120 [2006]).Here, landlord has not presented sufficient proof to show that the fixed amount of liquidated damages was plainly or grossly disproportionate to foreseeable probable losses, which includes not only the cost of defending any proceeding but the risk of losing the $3,500,000 buyout payment. Indeed, landlord’s predecessor stipulated that in the event of landlord’s breach, tenant’s damages “would be impossible to ascertain, and that the payment constitutes a fair and reasonable amount under the circumstances and is not a penalty.”THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 12, 201817-349. PALUSHAJ REALTY, LLC, plf-res, v. VALENTIN RYJOV AND VALENTINA RYJOV, def-app — Order (Shawn T. Kelly, J.), dated December 19, 2016, affirmed, without costs.Although Civil Court denied defendants’ motion for summary judgment on the ground that “there remain several questions of material fact,” the court’s decision failed to identify those triable issues of fact. Upon our review of the record, we conclude that defendants’ submissions, including pleadings from a prior holdover proceeding, raise triable issues with respect to their warranty of habitability and other counterclaims, including the nature and duration of the alleged conditions in their apartment (see Armstrong v. Archives L.L.C., 46 AD3d 465 [2007]; Elkman v. Southgate Owners Corp., 233 AD2d 104 [1996]); whether defendants unreasonably refused to permit plaintiff-landlord access (see 150-15 79th Ave. Owners Corp. v. James, 32 Misc 3d 132[A], 2011 NY Slip Op 50606[U] [App Term, 2nd, 11th and 13th Jud Dists. 2011]; Joan M. Bebry, LLC v. Kruglova, 32 Misc 3d 143[A], 2011 NY Slip Op 51674[U][App Term, 2nd, 11th and 13 Jud Dists 2011]); whether the pattern of harassment alleged by defendants exceeded the bounds of decency and whether defendants suffered genuine and severe distress as a result (see Freihofer v. Hearst Corp., 65 NY2d 135, 143 [1985]; Murphy v. American Home Prods. Corp., 58 NY2d 293, 303 [1983]). Thus, notwithstanding the absence of opposition papers, since defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, summary judgment is unwarranted (see Zecca v. Riccardelli, 293 AD2d 31, 34 [2002]; Public Serv. Mut. Ins. Co. v. AYFAS Realty Corp., 234 AD2d 226, 227-228 [1996], lv dismissed 90 NY2d 844 [1997]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 12, 201817-314/320. THE CARLYLE, LLC, pet-lan-cross-app, QUIK PARK BEEKMAN II, LLC, res-ten-app, -and- QUIK PARK BEEKMAN LLC AND BEEKMAN GARAGE LLC, res-unt-res, QUIK PARK 1633 GARAGE LLC, res-unt-app, -and- “XYZ CORP.,” “ABC CORP.,” “JOHN DOE” AND “JANE DOE”, res-unt — Amended judgment (David B. Cohen, J.), entered June 6, 2016 (appeal Nos. 1 and 3), modified to the extent of vacating the dismissal of the use and occupancy claims against Quick Park Beekman LLC and Beekman Garage LLC, and directing entry of an amended money judgment in favor of landlord and against Quik Park Beekman II, LLC, Quick Park Beekman LLC and Beekman Garage LLC, jointly and severally, in the principal sum of $1,047,288.56; as modified, amended judgment affirmed, with $25 costs. Amended judgment (David B. Cohen, J.), entered June 6, 2016 (appeal No. 2), affirmed, without costs. Cross appeals from order (David B. Cohen, J.), entered December 30, 2015, dismissed, without costs, as subsumed in the cross appeals from the amended judgments.The underlying 2001 commercial lease agreement for the East 76th Street, multi-level, parking garage premises at issue, as well as its 2009 extension/modification agreement, contained liquidated damages provisions together providing for use and occupancy at two times the rent plus $25,000 per month in the event of a holdover. We agree with Civil Court that this agreement, entered into by sophisticated parties as part of a commercial lease agreement setting forth a monthly rent in excess of $100,000 per month, did not constitute an unenforceable penalty (see 172 Van Duzer Realty Corp. v. Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528 [2014]). Tenant Quik Park Beekman II, LLC ["tenant"] failed to establish that damages could have easily been anticipated when the lease and its extension/modification were executed, or that the amount fixed was plainly or grossly disproportionate to the loss (see Truck Rent-A-Ctr. v. Puritan Farms 2nd, 41 NY2d 420, 425 [1977]; Tenber Assoc. v. Bloomberg L.P., 51 AD3d 573 [2008]).Tenant also contends that the liquidated damages provision is not enforceable against it because it was not a party to the lease, and was not a legal assignee of the lease since landlord never consented to the assignment. We disagree. Contrary to tenant’s contention, there exists no factual issue as to whether tenant is bound by the liquidated damages provision. Landlord affirmatively pleaded in paragraph eight of the petition that tenant “was the tenant of the premises” pursuant to the aforementioned lease and extension/modification agreement between landlord and tenant’s predecessor, which lease was thereafter assigned to tenant. This formal judicial admission by landlord (see Bogoni v. Friedlander, 197 AD2d 281, 291-292 [1994], lv denied 84 NY2d 803 [1994]), not denied by tenant in its answer, was therefore, deemed admitted (see CPLR 3018[a]). “Consequently that fact is not in controversy” (Urraro v. Green, 106 AD2d 567, 568 [1984]). In any event, we note that the assignment of the lease to tenant was unconditional. Pursuant to the assignment, tenant “agree[d] to pay the rent promptly and perform all of the terms of the Lease…[and] assume[d] full responsibility for the Lease as if [tenant] signed the Lease originally as Tenant.” Landlord impliedly consented to the assignment by collecting rent from tenant immediately after the assignment was executed and commencing a nonpayment proceeding against tenant in 2013.Civil Court also correctly rejected tenant’s argument that a partial actual or constructive eviction bars the landlord from collecting the liquidated damages agreed to in the lease for their holding over beyond the expiration of the lease (see Parsons & Whittemore v. 405 Lexington, 299 AD2d 156, 157 [2002], lv dismissed in part, denied in part 99 NY2d 650 [2003]). In any event, landlord’s installation of scaffolding, as part of its repairs to the facade, was not a wrongful act constituting an eviction because it was authorized by the lease (see Carlyle, LLC v. Beekman Garage LLC, 133 AD3d 510, 510 [2015]).We also sustain the use and occupancy award against undertenant Quik Park 1633 Garage LLC (see Carlyle, LLC v. Beekman Garage LLC, 133 AD3d at 512). Although undertenant appeared at the inquest, it did not answer the petition, never moved to vacate its default and, indeed, expressly disclaimed any intent to seek vacatur relief. Thus, undertenant is deemed to have admitted all traversable allegations in the petition, including basic allegations of liability (see Hermitage Ins. Co. v. Athena Mgt. Corp., 115 AD3d 628, 629 [2014]). In these circumstances, undertenant’s present argument that the court could not enter a money judgment against it is not properly before us, since undertenant’s liability was law of the case (see Taylor v. Brooke Towers LLC, 73 AD3d 535 [2010]), and the issue which undertenant is now raising was not the subject of contest below (see James v. Powell, 19 NY2d 249, 256 n 3 [1967]). We further note that a fair interpretation of the evidence supports Civil Court’s finding that undertenant “was in possession, never surrendered possession, [and] remained in possession throughout the entire holdover period.” We also note that landlord complied with all the procedural requirements of RPAPL article 7.With respect to the cross appeal, we agree with landlord that a money judgment should have been entered against defaulting respondents Quick Park Beekman LLC and Beekman Garage LLC. Beekman Garage LLC was the tenant under the original lease and Quick Park Beekman LLC, successor by assignment from Beekman Garage LLC, was designated as tenant pursuant to the extension/modification agreement. These entities remained fully liable for all obligations under the underlying agreements, pursuant to Article 44(c) thereof, notwithstanding that the lease was assigned to Quick Park Beekman II, LLC.Landlord failed to establish a legal or factual basis to increase the use and occupancy awards. We have considered all of the parties’ remaining arguments and find them unpersuasive.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 12, 2018
