Tobias P. Burke and Mary P. Burke, Petitionersv.Valerie Leary, RespondentPetitioners seek an Order restoring this proceeding to the calendar, denying the Respondent’s Order To Show Cause, directing the Clerk of the Court to issue a new Warrant of Eviction forthwith, holding the Respondent in contempt of court, and sanctioning the respondent. Respondent opposes the motion and asks this Court to dismiss this action on the ground that the petitioner is requesting a similar relief in the Supreme Court of Westchester County. On April 27, 2016 the Petitioners purchased the subject premises at auction from the City of Mt. Vernon. After purchase, the Petitioners became aware that the Respondent, who was the former owner, continued to reside at the premises. When the Respondent refused to vacate the subject premises, the Petitioners commenced this action.The parties first appeared in this court on October 12, 2016. On that date, the court adjourned the matter to October 19, 2016 on the Respondent’s application to obtain an attorney.On October 19, 2016, the Respondent appeared, pro se, and the court adjourned the proceeding to October 24, 2016 for a traverse hearing and a trial. The traverse hearing and trial was adjourned to October 27, 2016.On October 27, 2016, the Respondent failed to appear timely and an Inquest was started. Prior to the completion of the Inquest the Respondent appeared. After an extensive court conference, the parties executed a written stipulation of settlement. As part of that agreement, the Respondent consented to the jurisdiction of the court and the entry of a Judgment of Possession and Warrant of Eviction in favor of the Petitioner. In consideration thereof, the Petitioner agreed to stay the issuance of the Warrant of Eviction through November 26, 2016. The presiding judge also allocuted the Respondent on the record, to assure that she understood the stipulation that she was agreeing to.The Respondent did not vacate the subject premises. Instead, she filed an Order to Show Cause to vacate the October 27, 2016 stipulation of settlement and have the proceeding dismissed. On November 30, 2016, the parties appeared in this court and adjourned the matter to December 16, 2016 for the Petitioners to submit opposition papers.Prior to the Petitioners submitting their opposition papers, the Respondent filed an Order to Show Cause in Westchester County Supreme Court to vacate the October 30, 2013 tax lien foreclosure of the subject premises. In an Amended Decision and Order dated April 30, 2018, Justice Linda Jamieson of the Westchester County Supreme Court denied Respondent’s motion in its entirety and vacated all stays. Petitioners now seek an Order restoring this proceeding to the calendar, denying the Respondent’s Order To Show Cause, directing the Clerk of the Court to issue a new Warrant of Eviction forthwith, holding the Respondent in contempt of court, and sanctioning the respondent.It is well settled that stipulations of settlement “are favored by the courts and not lightly cast aside” (Hallock v. State of New York, 64 NY2d 224, 230 [1984]). As “independent contract[s]…subject to the principles of contract law” (Simmons v. Simmons, 305 AD2d 661, 661 [2003]; Dreiss v. Dreiss, 258 AD2d 499, 500 [1999]), stipulations may be vacated only on grounds sufficient to invalidate a contract, such as “fraud, mistake, collusion or accident” (Nash v. Yablon-Nash, 61 AD3d 832, 833 [2009]).In opposition to the Petitioners’ motion, the Respondent does not argue in her papers that the stipulation be vacated as a result of fraud, mistake, collusion or accident. The Respondent contends that she did not write her signature on the October 27, 2016 stipulation, but under duress she maintains that she merely wrote in her phone number. A review of the written stipulation shows a broken line above the signature line where the Respondent was directed to sign. The stipulation was so-ordered by the presiding judge, Hon. Nichelle Johnson, after allocuting the Respondent on the record, and finding that Respondent knowingly and voluntarily executed the same. Respondent seeks dismissal of these proceedings arguing that the Petitioners have requested a similar relief against her in the Supreme Court of Westchester County under Index Number 53049/18. Respondent also raises issues regarding the service of predicate notices in this underlying action.“[A]n open-court stipulation is an independent contract between the parties (see, McWade v. McWade, 253 AD2d 798), and will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” (Jablonski v. Jablonski, 275 AD2d 692, 693 [2000]). In order to prove legal duress, a party must adduce evidence that a wrongful threat precluded the exercise of the party’s free will (Sontag v. Sontag, 114 AD2d 892, 894 [1985]). General contentions that a party felt pressured by the court are insufficient to establish such a claim (see Cavalli v. Cavalli, 226 AD2d 666, 667 [1996]; Sontag v. Sontag, 114 AD2d 892, 894 [1985]). “[E]ven a stipulation which was improvident will not be set aside unless it is manifestly unfair or unconscionable” (Cavalli v. Cavalli, supra at 667; see Wilutis v. Wilutis, 184 AD2d 639, 640 [1992]).In the instant matter, Respondent has wholly failed to make the requisite showings of duress, and thus she has not demonstrated that the court should vacate the underlying judgment. Moreover, lack of personal jurisdiction based upon defective service of process is a defense that may be waived “by appearance, by failure to plead such defense, by failure to move to dismiss upon such basis, or by stipulation.” Biener v. Hystron Fibers, Inc (78 AD2d 162, 165-66, 434 NYS2d 343, 346 [1st Dep't 1980]). The October 27, 2016 stipulation of settlement provides that the Respondent consents to the jurisdiction of the court. Where a party consents to personal jurisdiction in a stipulation of settlement which awards judgment to the other party, a subsequent motion to vacate that judgment will be denied, “[g]iven that stipulations of settlement are favored by the courts and are not lightly case aside.” 34 Funding Assoc., Inc v. Pollak (26 AD3d 182, 811 NYS2d 352 [1st Dep't 2006]). See also Lomando v. Duncan (257 AD2d 649, 684 NYS2d 569 [2nd Dep't 1999])(“A defect in personal jurisdiction may be waived where a party submits to the court’s jurisdiction by, inter alia, stipulating to settle an action”); Manufacturers Hanover Trust Co v. Porcelli (121 AD2d 384, 503 NYS2d 404 [2nd Dep't 1986])(upholding lower court’s holding “that by entering into a stipulation settling the underlying action, the appellants waived any objections they had to the alleged defective service”).The Supreme Court action that was filed by the Petitioners seeks damages against the city of Mount Vernon, as well as the Respondent herein for breach of contract. Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending (see Whitney v. Whitney, 57 NY2d 731, 732 [1982]). Under the circumstances of this case, this Court finds the Petitioners cannot obtain full redress of its rights for the possession of the premises in an expedited manner in the Supreme Court action, and as such, this action will not be dismissed on that ground.Petitioners further argue that the Respondent’s deception and delay of this matter greatly prejudiced them. The Petitioners allege that they have continued to pay the common charges on the subject premises in the amount of $12,479.00 since purchasing the property. They are also seeking legal fees in this proceeding.Petitioners ask this court to find the Respondent in civil and/or criminal contempt, and to issue an Order entering a Judgment in favor of the Petitioners and against the Respondent for the $12,479.00 in common charges, and legal fees the Petitioners have paid over the years. In the alternative, Petitioners seek sanctions against the Respondent for her frivolous behavior.A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Educational Reading Aids Corp. v. Young, 175 AD2d 152 [1991]). Moreover, the movant bears the burden of proof (see Vujovic v. Vujovic, 16 AD3d 490 [2005]; Rupp-Elmasri v. Elmasri, 305 AD2d 394 [2003]). To prevail, the movant must demonstrate that “the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation” (Goldsmith v. Goldsmith, 261 AD2d 576, 577 [1999]; see Judiciary Law §753 [A] [3]; Matter of McCormick v. Axelrod, 59 NY2d 574, 584 [1983]; City of Poughkeepsie v. Hetey, 121 AD2d 496 [1986]; Oppenheimer v. Oscar Shoes, 111 AD2d 28 [1985]). The contempt must be proven by clear and convincing evidence (see Rienzi v. Rienzi, 23 AD3d 447, 449 [2005]; Vujovic v. Vujovic, 16 AD3d at 491; Goldsmith v. Goldsmith, 261 AD2d at 577). The imposition of punishment for criminal contempt similarly requires a showing that the alleged contemnor violated a clear and unequivocal court mandate (see Judiciary Law §750 [A] [3]; City Wide Sewer & Drain Serv. Corp. v. Carusone, 39 AD3d 687, 688 [2007]; Gerelli Ins. Agency, Inc. v. Gerelli, 23 AD3d 341[2005]; Giorgini v. Goldfield, 22 AD3d 800 [2005]; City of Poughkeepsie v. Hetey, 121 AD2d 496, 497 [1986]). An essential element of criminal contempt is willful disobedience (see Dalessio v. Kressler, 6 AD3d 57, 66 [2004]).Since Petitioners need to establish a violation of the so-ordered stipulation by clear and convincing evidence, a hearing must be held. A hearing is also required to determine if Petitioners sustained actual damages and if so, the amount of those damages. Alternatively, if Petitioners did not sustain actual damages, the Court must determine the appropriate fine and the costs and expenses Petitioners’ incurred including reasonable attorney’s fees.Accordingly, it isORDERED that the Petitioners’ motion to restore this action to the calendar is granted; and it is furtherORDERED that Respondent’s Order to Show Cause to vacate the October 27, 2016 stipulation of settlement is denied; and it is furtherORDERED that the Petitioners’ motion for a new Warrant of Eviction is granted and is to be issued forthwith; and it is furtherORDERED that Petitioners’ motion to hold the Respondent in contempt is granted to the limited extent of setting this matter down for a hearing on September 5, 2018 at 2:00 PM in Part A of this courthouse.The Court considered the following papers on this motion:Respondent’s Order to Show Cause, Exhibits A-F, dated October 27, 2016; Petitioners’ Notice of Motion, Affirmation in Support, Exhibits 1-7, filed July 10, 2018; Respondent’s Affidavit in Opposition, Exhibits A-C, filed July 20, 2018; Petitioners’ Affirmation in Reply, Exhibit 1, filed July 27, 2018.Dated: August 1, 2018Mount Vernon, New York
