Recitation, as Required by CPLR 2219(A), of the Papers Considered in this Motion by Respondent to Vacate the Stipulation and Dismiss the Proceeding.PAPERS NUMBEREDNotice of Motion, Affidavit Annexed and Exhibits 1Affirmation in Opposition 2Reply Affirmation 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:PROCEDURAL BACKGROUND:This holdover proceeding was commenced in December 2017 to recover possession of apartment 4D located at 1247 Flatbush Avenue, Brooklyn, New York. Petitioner is seeking possession on the ground that respondent is breaching a substantial obligation of his tenancy. Pursuant to the Notice to Cure incorporated in to the Notice of Termination, petitioner alleges respondent has violated his lease:you or your visitors have continually engaged in conduct that has caused disturbance to the surrounding tenants of 1247 Flatbush Avenue, Brooklyn, New York 11226 by allowing your dog to run and urinate all throughout the building and by failing to provide the landlord and/or his agents access into your apartment to do necessary repairs including, but not limited to, your Housing Preservation Development (“HPD”) section 8 violations. Said lease was entered into between CHV 1247 FLATBUSH AVENUE LIMITED PARTNERSHIP, as landlord, and ADRIAN LEATH as tenant for the term commencing March 1, 2013 and terminating February 28, 2014. Said lease was renewed thereafter (Hereinafter referred to as “your lease agreement.”The Notice to Cure also stated that respondent was violating paragraph 16 of the lease by “failing to allow the landlord and/or its agents access into your apartment to do necessary repairs, but not limited to, HPD Section 8 violations, as well as violating paragraph 17 of the lease as “you have allowed yourself or our visitors to engage in conduct that has disturbed the surrounding neighbors of 1247 Flatbush Avenue, Brooklyn, New York 11226 on a continuous basis by allowing his dog to run and urinate all throughout the building which disturbs the other tenants. This activity continuous to occur on a regular basis therefore you are in violation of Paragraph 17 of your lease.”The proceeding was first scheduled on the court’s calendar for December 20, 2017 at which time respondent appeared, the proceeding was adjourned to January 23, 2018 and access for repairs was arranged for January 3, 2018. On January 23, 2018, respondent failed to appear, and the proceeding was adjourned for inquest to February 6, 2018. On February 6, 2018, respondent failed to appear and the court conducted an inquest, and petitioner was granted a final judgment of possession Respondent filed a pro se order to show cause with a return date of February 14, 2018. On February 14, 2018, respondent appeared without counsel and entered into a stipulation in which the judgment of possession remained in full force and effect and the execution of the warrant was stayed until December 31, 2019. The stay of eviction was conditioned on respondent’s dog being leashed in the common area and respondent refraining from “engaging in, allowing yourself or permitting visitors from engaging in a cause of conduct that disturbs the surrounding neighbors of the subject building by allowing respondent’s dog to run around unleashed and urinate throughout the building. If an accident by the dog should occur in the common area respondent to have cleaned up immediately.” The stipulation also required respondent to provide “unfettered access” to petitioner, its agents and contractors to make repairs, as well as to HPD inspectors, and required respondent to sign off on section 8 certification of completed repairs form. Respondent also agreed to comply with the house rules. Upon default the proceeding could be restored on five (5) days notice for an evidentiary hearing regarding the breach. On April 13, 2018, respondent filed an order to show cause to have repairs done in the apartment. On April 23, 2018, the return date, the order to show cause was denied as moot as no marshal’s notice was served. On June 18, 2018, petitioner moved to restore the proceeding to the court’s calendar to execute on the warrant of eviction for respondent’s violation of the stipulation. On July 2, 2018, the return date of the motion, the proceeding was adjourned to August 21, 2018 for a hearing. Respondent subsequently retained counsel who filed the within Notice of Motion to vacate the February 14, 2018 stipulation, judgment, and warrant, and dismissing the petition, pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. In the alternative, if the stipulation is not vacated, respondent requests time to interpose a written answer prior to trial.DISCUSSION:Respondent argues that the stipulation should be vacated for good cause as it is unduly harsh, one-sided and would not have been signed if he appeared with counsel. Respondent argues he signed the stipulation despite petitioner’s claims being legally insufficient to sustain a cause of action for breach of lease. In addition, respondent was also unaware the meaning of the term “common area,” or that he had defenses to the proceeding including the Notice to Cure and Notice of Termination lacked specificity, that respondent had cured or should have been permitted to cure the alleged conduct, the alleged conduct was directly related to his disability which entitled him to a reasonable accommodation. Respondent also argues that petitioner’s demands for “unfettered access”, were improper because petitioner failed to provide prior written notice requesting access upon reasonable notice from Monday through Friday from 9:00a.m-5:00p.m as required by the Housing Maintenance Code. The stipulation also required respondent to sign off on section 8 certification of completed repairs without regard to whether the repairs were actually completed. If the stipulation is vacated, respondent argues that the petition must be dismissed pursuant to CPLR§3211(a)((7) because it fails to state a cause of action for breach of lease as the Notice to Cure and Notice of Termination does not state sufficient facts to show a “pattern of continuity or recurrence of objectionable conduct, specific dates, times, names of tenants affected. The Notice to Cure or Notice of Termination also fails to allege respondent engaged in the complained of conduct or specific dates and times past the cure period.In opposition, petitioner argues that the stipulation should not be vacated as respondent has failed to show good cause or set forth an excusable default or meritorious defense. The stipulation which was reviewed by the court attorney and judge, was entered into willingly and knowingly, and there was no fraud, collusion, mistake or accident nor were the terms “unduly harsh.” Petitioner further argues that respondent understood the terms and was aware he could raise defenses since he has been to housing court on numerous occasions. Petitioner further argues that the stipulation, which states respondent shall comply with the “House rules, is an agreement to nothing more than what he agreed to upon moving into the apartment, and “unfettered access” is not harsh and simply means that respondent would provide access without interference on the scheduled dates and any other mutually agreed upon dates. Further, petitioner argues that the stipulation affords respondent an opportunity to refute or present any evidence in opposition to petitioner’s claim in an evidentiary hearing. In opposition, petitioner argues that the proceeding should not be dismissed because respondent waived his jurisdictional defenses by appearing, that the Notice to Cure raises a cause of action for nuisance, sets forth facts necessary to establish the ground and basis for terminating the lease, a date by which to cure, and the specific lease provision being violated, information which gives respondent an opportunity to formulate a defense.Stipulations of settlement are favored by the courts and not lightly cast aside. Hallock v. State of New York, 64 NY2d 224 (1984). Relief from a stipulation may be granted in order to prevent injustice, upon a showing of good cause such as fraud, collusion, mistake, or accident. Matter of Frutiger, 29 N.Y.2d 143, (1971). Good cause is also shown where “either party has inadvertently, unadvisably, or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice.” The court may also vacate a stipulation if it is unduly harsh or unjust and if the parties may be returned to their former position. Solack Estates, Inc. v. Goodman, 102 Misc.2d 504, aff’d 78 AD.2d 512 (1st Dept. 1980). A party’s lack of representation at the time of entry into the stipulation is a significant factor to be considered in determining whether good cause exists to vacate the stipulation. Cabbad v. Melendez, 81 AD.2d 626 (2nd Dept. 1981). While lack of representation is not sufficient to invalidate a stipulation, good cause for vacatur exists where the lack of representation has resulted in a stipulation whose terms are unduly one-sided or unfair. Unfairness will be found where a pro se tenant has failed to assert a substantial defense to the landlord’s claims in the proceeding. 144 Woodruff Corp. v. Lacrete, 154 Misc.2d 301 (Civ. Ct. Kings County, 1992).Respondent has shown good cause to vacate the stipulation. Respondent entered the stipulation pro se and was unaware he had defenses to the proceeding when he agreed to be placed on probation for twenty months. A tenant may have a defense if they have harbored a pet “openly and notoriously for a period of three months or more. N.Y.C. Administrative Code §27-2009.1 (b). Where a pet is needed by a tenant due to a disability, a landlord may be required to allow the pet as a reasonable accommodation under laws that protect a disabled person based upon discrimination. Petitioner cannot have “unfettered access” to respondent’s apartment and must give reasonable notice from Monday to Friday between 9:00a.m.-5:00pm. unless there is an emergency. Accordingly, respondent’s has shown good cause and the stipulation is hereby vacated.Respondent moves to have the petition dismissed for failure to state a cause of action Petitioner argues that respondent waived his jurisdictional defenses, including failure to serve a proper predicate notice. Petitioner states this does not deprive the court of subject matter jurisdiction. However, service of a proper predicate notice is a condition precedent to commencing a holdover proceeding, and may be raised at any time, even on appeal. In determining a motion to dismiss pursuant to CPLR §3211 the courts must liberally construe the pleadings, accept the facts as alleged to be true and interpret them in light most favorable to the non-movant. Leon v. Martinez, 84 NY2d (1994). Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession. Rent Stabilization Code 2524.2(b). In a breach of a substantial obligation holdover proceeding based upon nuisance, a notice to cure must be served prior to termination of the tenancy. Nuisance is conduct that is more than an isolated incident but a continuing or recurrent pattern of objectionable conduct or a condition that threatens the comfort and safety of others. The Notice to Cure must be specific to apprise the tenant of the condition that the landlord alleges is a default of the tenant’s obligation. The Notice of Termination must also set forth sufficient facts to establish grounds for the landlord to recover possession, including specific lease provisions involved in a alleged breach of lease proceeding. Chinatown Apartments Inc. v. Chu Cho Lam, 51 N.Y. 2d 786 (1980). A notice that sets forth legal conclusions is not sufficient. Sufficiency of the notice is whether it is reasonable in view of the attendant circumstances. The Notice to Cure and Notice of Termination in this case are defective as they fail to cite specific facts, the notices fail to state any specific dates or times that the objectionable conduct allegedly occurred and contains conclusory allegations of the dog running and urinating throughout the building and respondent failing to give access for repairs. The notices fail to specify how respondent has interfered or threatened the comfort and safety of others and whether any incidents occurred after the cure period. As the defect is not curable by amendment, the notice of termination is defective and the petition must be dismissed. Giannini v. Stuart, 6AD2d 418 (1st Dept. 1958).Accordingly, respondent’s motion is granted, the stipulation is vacated and the proceeding is dismissed.This constitutes the decision and order of the court.Dated: February 1, 2019Brooklyn, New York
