Recitation, as Required by CPLR 2219(A), of the Papers Considered in the Review of this Motion by Respondent to Vacate StipulationPapers NumberedOrder to Show Cause and Affidavits Annexed 1-3Answering Affidavits & Affirmation n/aReplying Affidavits 20Exhibits 4-19DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this holdover proceeding on or about September 21, 2017, seeking to recover possession of Apartment #224, a rent stabilized apartment, located at 2720 Grand Concourse, Bronx, NY, on the ground that Respondent breached a substantial obligation of her tenancy and violated the terms of the lease between the parties. Specifically, Petitioner sought possession on the ground that Respondent consistently and chronically failed to pay her rent on time, necessitating Petitioner to have to commence numerous proceedings in a relatively short period of time to recover the rent.The proceeding first appeared on the Court’s calendar on October 11, 2017. On that date, Respondent appeared pro se and the proceeding was adjourned for Respondent to seek counsel. The Court file reflects that Respondent was given a referral to legal services. On December 1, 2017, the adjourned date, the proceeding was once again adjourned for Respondent to seek counsel. On January 22, 2018, the parties entered into a stipulation of settlement pursuant to which Respondent consented to a probationary period of eleven months (February 2018 through December 2018) during which Respondent was to pay use and occupancy by the last day of each month. Subsequently, on or about March 8, 2018, Petitioner moved to restore the proceeding to the Court’s calendar seeking a final judgment of possession and for arrears due based on its claim that Respondent failed to comply with the January 22, 2018 stipulation. That motion was subsequently denied based on Petitioner’s failure to appear on the return date. Then on May 4, 2018, by notice of motion, Petitioner once again moved for the same relief. This motion was adjourned several times, and Respondent was once again referred to a legal service provider. Then on July 31, 2018, the parties entered into a stipulation of settlement pursuant to which Petitioner was granted a final judgment of possession for $4,763.84, the balance due through that time, and Respondent once again agreed to a probation through June 2019, during which time Respondent agreed to pay use and occupancy by the last day of each month.Respondent now represented by counsel, moved via order to show cause for an order vacating the stipulations of settlement, dismissing the petition for failure to state a cause of action, granting summary judgment, or in the alternative staying execution of the warrant of eviction so as to give Respondent additional time to satisfy the judgment. In support of her order to show cause, Respondent asserts that she is a disabled, twenty-two year tenant of the subject apartment. Respondent argues that this proceeding is based on a grossly defective notice to terminate which alleged only three instances of rent delinquency over the course of Respondent’s tenancy. Specifically, Respondent argues that none of the proceedings may be utilized by Petitioner as the first proceeding is barred by the statute of limitations, the second proceeding does not involve Respondent as it involves a different landlord and a different tenant, and the third included bona fide defenses, including breach of the warranty of habitability and a dispute over the arrears due.In opposition, Petitioner asserts that this proceeding was settled after lengthy negotiations, and that despite the fact that it was commenced based on Petitioner’s allegations of Respondent’s chronic failure to pay rent she has still failed to show her ability to pay the arrears. Moreover, Petitioner asserts that a warrant of eviction has already issued to a city marshal.In her reply, Respondent challenges the service of Petitioner’s opposition papers, and requests that the Court not consider them. Counsel asserts that to the extent that the papers were served upon Respondent directly, such service is improper as they were not served on counsel. Notwithstanding, Respondent contends that Petitioner’s papers do not present a proper defense to her motion seeking to vacate the stipulations of settlement and to dismiss the proceeding for failure to state a cause of action. Moreover, Respondent contends that the case law relied upon by Petitioner is misplaced and not directly on point to the issues raised.At the outset, the Court notes that on October 25, 2018, this proceeding was adjourned to November 1, 2018. The notation on the Court file provides that the adjournment was for “Pet’s counsel to find the opp that was served, file it w/ aff of service & argue motion.” However, upon review of the parties’ pleadings, the Court discovered that Petitioner’s opposition papers are dated October 29, 2018, and the affidavit of service annexed to the opposition reflects that service was made on Respondent and her attorney on that date. In addition, the Court notes that the opposition papers Respondent received appear to have been drafted in opposition to this motion as they are dated September 4, 2018. However, Petitioner failed to show proof of proper service and to the extent that the papers were served directly on Respondent, such service is improper. Based on the fact that the opposition papers now provided the Court were not drafted and served until after the Court directed Petitioner to locate the opposition papers that were presumably already drafted and served, the Court will not consider said papers as no reasonable excuse was presented for the delay in filing and serving said papers.Turning to the merits of Respondent’s motion, it is well-settled that stipulations of settlement are favored by the courts (Hallock v. State of New York, 64 NY2d 224, 230, 485 NYS2d 510 [1984]). However, upon a showing of good cause such as fraud, collusion, mistake, accident, or some other ground of the same nature, the court may vacate a stipulation (Matter of Frutiger, 29 NY2d 143, 150, 324 NYS2d 36 [1971]). The discretion of the court to vacate a stipulation is not confined to instances of collusion, mistake, accident, fraud and surprise (see Solack Estates v. Goodman, 102 Misc 2d 504, affd 78 AD2d 512 [1980]). Moreover, “the court has [the] power to relieve a party from a stipulation which is unjust or harsh even when fully understood and authorized” (Bond v. Bond, 260 AD 781, 782, 24 NYS2d 169 [1940]. In fact, the court should vacate the stipulation when the parties can be restored to their former status (2 Carmody-Wait 2d §7:20“A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a ‘substantial obligation’ of the tenancy” (PWV Acquisition, LLC v. Maddox, 8 Misc3d 127 (A), 801 NYS2d 781 [App Term, 1st Dept 2005]). The case law holds that in order for a landlord to prevail in a holdover proceeding based on chronic nonpayment, the landlord must establish that it was required to commence frequent nonpayment proceedings in a relatively short period of time (see Andrew Scherer et al., Residential Landlord — Tenant Law in New York, §8:84 “Specific types of violations”) [note: online version]. However, the number and frequency of nonpayment proceedings does not, in and of itself, determine whether a judgment for eviction is warranted because all of the circumstances surrounding the alleged withholding of rent must be analyzed (see Greene v. Stone, 160 AD2d 367, 553 NYS2d 421 [1st Dept 1990]). And, where there is a valid dispute with the landlord over the landlord’s failure to make repairs, the tenant may be justified in having withheld rent preventing the finding of breach of a substantial obligation under the lease (id at 368).In 2564 Company v. D’addario, 35 Misc2d 176, 232 NYS2d 294 (App Term, 1st Dept 1961), the court held that “where the landlord has presented irrefutable proof that the tenant violated a substantial obligation of his tenancy by repeated and unjustified refusal to pay his rent when due, which necessitated 11 separate dispossess proceedings over a period from October 1958 to May 1960, or one every three months, a final order in favor of the landlord should have been granted.” Similarly, in Rental Realty Corp v. Lawrence, 14 Misc2d 1070, 180 NYS2d 111 (App Term, 1st Dept 1958), the court held that “where landlord presented irrefutable proof that tenant violated a substantial obligation of his tenancy by repeated and unjustified refusal to pay his rent when due, necessitating 12 separate dispossess proceedings over a period of 20 months, a final order in favor of landlord should have been granted.” Similarly, in Adam’s Tower Limited Partnership v. Richter, 186 Misc2d 620, 717 NYS2d 825 (1st Dept 2000), the court held that where the landlord was required to commence 9 nonpayment proceedings during the period of June 1995 through October of 1998 (3 and ½ years) which were resolved by so-ordered stipulations in which tenants consented to judgments and agreed to pay the arrears sought in full without any abatement, the landlord’s motion for summary judgment should have been granted.Respondent seeks to vacate the stipulations of settlement entered into between the parties on the ground that the petition fails to state a cause of action. Pursuant to CPLR §3211 (a)(7), a party may move for judgment dismissing one or more cause of action asserted against him on the ground that the pleading fails to state a cause of action. On a motion to dismiss pursuant to CPLR §3211, “the pleading is to be afforded a liberal construction” and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511 [1994]) ([internal quotation marks omitted]).Based on the Court’s review of the petition, the procedural history of this holdover proceeding, and the standard for a proceeding commenced based on an alleged breach of a substantial obligation of the lease, this Court finds that the petition and the accompanying notice of termination do not form a proper basis for this proceeding. The proceeding relies upon three nonpayment proceedings commenced over a period of time. However, one of the proceedings relied upon is not a proceeding involving the parties (Index Number 42582/12), and Petitioner could not and should not have relied upon it to commence this proceeding. The proceeding commenced under Index Number 6974/11, although commenced in 2011 did not conclude until April 2012, which falls within the six year statute of limitations set forth in CPLR §213 (2). Notwithstanding the above, this leaves the petition to stand on one proceeding commenced in 2011, and another commenced in 2016, five years apart throughout this 22-year tenancy.For these reasons, Respondent’s order to show cause seeking to vacate the stipulations entered into in this proceeding is GRANTED and the stipulations and the ensuing final judgment is hereby vacated. Respondent’s motion which upon vacatur also seeks an order dismissing the petition for failure to state a cause of action and granting summary judgment is GRANTED and the petition is hereby dismissed.This constitutes the decision and order of the Court.Dated: February 26, 2019
