In this commercial summary proceeding, respondent, New Tech Auto Ltd., now represented by counsel, moves to vacate a stipulation of settlement that was “so ordered” on April 3, 2019. Petitioner, Markland 153 LLC, opposes the motion.This action was originally brought in this Court on February 22, 2019, as a nonpayment proceeding based on the landlord’s claim that respondent failed to pay a total of $62,712.92 through January, 2019. The case was first scheduled on the Court’s calendar for March 4, 2019, at which time Farouk Mazarally appeared on behalf of respondent as its president. The case was adjourned to March 14, 2019, and on that date, respondent paid $7,400 to petitioner’s counsel, and the case was adjourned to April 3, 2019 for trial.On April 3, 2019, Mr. Mazarally appeared once again on behalf of respondent, at which time the parties entered into a stipulation of settlement wherein the parties converted the nonpayment petition to a holdover, respondent agreed to vacate the subject property by April 30, 2019, and further, that the respondent pay use and occupancy of $5,000 by April 10, 2019. The respondent was not compliant with the terms of the stipulation of settlement. Specifically, the respondent failed to pay the use and occupancy by the agreed upon date, and as a result thereof, the petitioner applied for a judgment and warrant, which application was granted by the Court. Respondent now represented by counsel, moves to vacate the stipulation, and seeks leave to serve and file an Answer to the Petition.Settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see e.g. Hallock v. State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]). Moreover, courts hold that “settlement agreements that have been so ordered by the court have the same effect as though the court itself had rendered a decision in the matter (Joseph v. Nationwide Ins. Co., 2002 NY Slip Op. 50473(U), 2002 WL 31748591 [Civ. Ct. NY Cty. 2002]).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 (see 144 Woodruff Corp. v. Lacrete, 154 Misc 2d 301 [Civ. Ct. Kings Cty. 1992]). Nevertheless, it is well settled that the enforcement of a court-ordered stipulation of settlement is “subject to the supervision of the courts” (Malvin v. Schwartz, 65 AD2d 769, 769 [1978], affd 48 NY2d 693 [1979]), and courts may relieve a party from the consequences of strict enforcement of a stipulation when such enforcement would be unjust or inequitable (see e.g. Weitz v. Murphy, 241 AD2d 547 [1997]; Bank of NY v. Forlini, 220 AD2d 377 [1995]).Respondent contends that Mr. Mazarally, who was pro se at the time, signed the stipulation on April 3, 2019, as a direct result of duress, overreaching and intimidation by petitioner’s attorney. Mr. Mazarally claims in his affidavit that respondent does not owe any of the rent claimed in the petition, and that he would not have signed the stipulation but for the fact that he felt intimidated by petitioner’s counsel. Respondent further contends that Mr. Mazarally made a material unilateral mistake by signing the stipulation converting a contested nonpayment case into a holdover which provided for a final judgment of possession, forfeiting five remaining years of the ten year lease. Alternatively, respondent asks the stipulation be vacated for good cause because respondent inadvisably or improvidently signed the stipulation.Counsel for petitioner disputes that he forced Mr. Mazarally to sign the stipulation under duress and overreaching. Further, petitioner argues that the Court conducted an extensive voir dire of Mr. Mazarally as to whether he was entering into the stipulation of his own free will and whether he fully understood the provisions of the terms of the agreement. After each of those queries by the Court, respondent is understood to have affirmatively answered that he was knowingly and voluntarily signing the stipulation.Respondent, now represented by counsel has failed to submit any probative documentary evidence showing the existence of an arguably meritorious dispute regarding outstanding arrears. There is no evidence to warrant setting aside the parties’ stipulation of settlement entered into in open court. In his allocution with respect to the stipulation of settlement, Mazarally, appearing pro se, affirmed in open court that he had knowingly and voluntarily entered into the stipulation of settlement, and he made no mention, at that time, that his agreement was the product of duress, coercion, fraud, or overreaching. Furthermore, courts will not set aside a stipulation merely because in “hindsight” a party decides that the terms of the stipulation were “improvident” (see, Town of Clarkstown v. M.R.O. Pump & Tank, 287 AD2d 497 [2d Dept 2001]).The law is clear that a party seeking to vacate a stipulation by asserting duress “must demonstrate that ‘threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing’ ” (Feuer v. Darkanot, 36 AD3d 753, 754 [2d Dept 2007] quoting Polito v. Polito, 121 AD2d 614, 614-615 [2d Dept 1986]). Generalized contentions that a party felt pressured by opposing counsel is insufficient. In the present case, the record fails to support the respondent’s contention that the stipulation of settlement was the product of duress.Similarly, respondent has failed to prove a unilateral mistake by clear and convincing evidence sufficient to vacate the stipulation of settlement (see, 104-106 E. 81st St. LLC v. O’Brien, 12 Misc 3d 1175[A] [Civ. Ct. NY County 2006]). A contract may be voided on the ground of a unilateral mistake of fact only where the enforcement of the contract would be unconscionable, the mistake is material and made despite the exercise of ordinary care by the party in error (see, William E. McClain Realty v. Rivers, 144 AD2d 216 [3d Dept 1988]).In the case at bar, the stipulation was entered into by corporate respondent’s president, Farouk Mazarally after having adjourned the matter twice before. Respondent had ample time and opportunity to assess its legal situation and determine how it wished to proceed. As such, respondent cannot establish that the mistake of entering into the stipulation would have been made despite the exercise of ordinary care.As addressed, supra, respondent has not presented any evidence that it did not owe the outstanding arrears. Moreover, respondent has also failed to show that enforcing the stipulation would result in unjust enrichment to petitioner.Inasmuch as respondent has not demonstrated the existence of cause sufficient to invalidate a contract, this court is denying respondent’s motion to vacate the final judgment entered under the stipulation.Accordingly, respondent’s motion is denied in its entirety and the warrant may be executed upon the service, or re-service by mail of a marshal’s notice.This constitutes the Decision and Order of this Court.Dated: June 3, 2019Mount Vernon, New York
