Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s motion seeking the vacatur of the stipulation, dismissing the proceeding and/or staying the enforcement of the judgment and warrant and for any other relief as the court may deem proper: Papers Numbered Order to Show Cause 1 Notice of Cross-Motion and Affidavits Annexed Answering Affirmations/Affidavits 2 Replying Affirmations Exhibits Memorandum of law DECISION/ORDER Upon the foregoing cited papers, the decision and order on respondent’s motion is as follows: PROCEDURAL HISTORY The underlying holdover proceeding seeks possession of the rent stabilized single room subject premises located at 112-22 Rockaway Beach Boulevard, Room 1, 2nd Floor, Rockaway Park, New York 11694. It is predicated on notice to quit dated August 28, 2018, claiming that respondent is a licensee of GTI Imports, Inc. (GTI) whose license has expired when GTI gave up possession of the premises. The notice of petition and petition were filed October 3, 2018. On November 29, 2018 the parties entered into a stipulation. Petitioner did so through counsel and respondent did so as a self-represented litigant. The agreement gave respondent until February 14, 2019 to vacate the premises and all use and occupancy was waived (at the amount of $500 per month). In March of 2019, Legal Aid Society moved, as a friend of the court, to have a guardian ad litem appointed for the Respondent. This motion was granted on consent on March 26, 2019, where an Adult Protective Services (APS) referral was made. As an APS control date, the matter was adjourned to May 2, 2019, where APS informed the court that the respondent was found ineligible. Following respondent’s current counsel’s motion, combined with statements made by petitioner, petitioner’s counsel as well as the court’s own observation of the respondent, Angelo Picerno, Esq. was appointed guardian ad litem and requested an adjournment on May 29, 2019 and the matter was marked off calendar on June 27, 2019 as there was no motion pending. Respondent, now through counsel (Legal Aid Society), filed the instant motion on July 8, 2019. The court heard argument on the motion on July 16, 2019 and reserved decision. RESPONDENT’S MOTION Respondent seeks the stay or vacating of the judgment and warrant and dismissal of the proceeding. Respondent argues that respondent entered into this agreement improvidently and without knowledge of possible defenses. Respondent states that the biggest waived defense was that GTI was an illusory tenant and that the respondent should be recognized as the rent stabilized tenant. Respondent provides only an affidavit and relies on the petitioner’s notice to quit and petition. Petitioner counters by stating that this request is after the six-month period allowable by the (old law) RPAPL §753(1) and that the stipulation should be enforced as was entered into by two parties willingly and without mistake. ANALYSIS The Court of Appeals has long held that while stipulations of settlement are “favored by the courts and not lightly cast aside” they may be vacated where one can show “cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.” Hallock v. State of New York, N.Y.2d 224, 230 (1984). The court “possesses the discretionary power to relive parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it.” 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 (1987), lv to appl dism. 73 NY2d 868 (1989); quoting, In Re Frutiger, 29 NY2d 143, 50 (1971). Courts have ample control over stipulations and the concurrent power to relieve parties from the consequences of stipulations. In re Frutiger, 29 N.Y.2d 143 (1971); see also, Weissman v. Bondy & Schloss, 230 AD 2d 465 (1st Dep’t 2007), [court may vacate stipulations for unilateral mistake where failing to do so would result in unjust enrichment of the other party]; Weitz v. Murphy, 241 AD2d 547, 548 (2nd Dept 1997); quoting, Goldstein v. Goldsmith, 243 A.D. 268, 271, [held, "under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief"]; Genesis Holding, LLC v. Watson, et. al, 5 Misc.3d 127(A) (App. Term., 1st Dep’t. 2004) [stipulation properly vacated when tenant's son, who suffers from mental disability warranting appointment of a guardian ad litem, did not fully understand the significance of the stipulation]. Thus, “[v]acatur of a stipulation is appropriate when a party-especially one who appears without counsel-enters into an agreement improvidently, and, in so doing, forgoes defenses sufficient to defeat the proceeding.” Cashmere Realty Corp v. Hershi, NYLJ, December 28, 2005, at 19, col. 3 (Civ. Ct. Kings Co. 2005), citing Genesis Holding, LLC v. Watson, et. al, 5 Misc.3d 127(A) (App. Term., 1st Dep’t. 2004); Help Social Services Corp v. Narod John, Civ. Ct, Queens County, Oct. 5, 2018., Poley, J. Index No. 55660/18. In the case at bar, a self-represented litigant who appears to be living with severe mental health issues (Lagoudis Affirmation 11) entered into a stipulation without giving contemplation to a variety of possible defenses, including his alleged lack of knowledge as to who he was renting from or his status as a potentially rent stabilized tenant. The court is required under these circumstances to vacate the Stipulation. Notably, there is no response from petitioner as to the facts alleged in the order to show cause, only an affirmation by the attorney. As such, the uncontested facts alleged constitute an articulable defense and warrant vacatur. Regarding the branch of the motion seeking dismissal, that part of the motion is categorically denied. On a motion to dismiss pursuant to CPLR 3211, “the pleading is to be afforded a liberal construction (see, CPLR 3026). [The Court] accepts the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 NY2d 83, 87-88 [Ct App 1994]. The burden of proof in this type of motion is on the movant. The movant here, only provides an affidavit from their client claiming that he did not have knowledge of who GTI was and makes the conclusory statement that his tenancy was an illusory one. This is an issue of fact, which should not be determined here on a CPLR §3211 type of motion, but rather at a full trial. CONCLUSION As stated above, Respondent’s motion is granted and denied in part to the following extent: judgment and warrant are vacated, the stipulation of settlement from November, 19, 2018 is vacated. This matter is restored to the calendar on September 9, 2019 at 9:30 AM in Room 404, Part E for immediate referral to the trial part. Respondent is instructed to serve and file an answer to this matter by August 23, 2019. This constitutes the decision and order of the court. Dated: August 6, 2019 Queens, New York
