Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion seeking an order vacating the pro se stipulation of settlement dated March 29, 2018, leave to interpose an amended answer, granting summary judgment pursuant to C.P.L.R. 3212, or modifying the prior judgment and discontinuing the case for that judgment being satisfied, or staying the execution of the warrant to satisfy the judgment. Papers Numbered Notice of and Affidavits Annexed 1 Answering Affidavits 2 Replying Affidavits 3, 4 Exhibits Memorandum of law DECISION/ORDER After argument and upon the foregoing cited papers, the decision and order on respondents’ motion is as follows: Petitioner commenced this nonpayment proceeding against Respondent, whose lease incorporated a LINC rider, with a $1268.00 preferential rent, terms for permissible renewal rent increases, entitling Respondent to a self-executing renewal lease at $1268.00, and three more one year leases. The proceeding was first settled by stipulation between 1253 Estates LLC (“Petitioner”), and Ronnel Capers (“Respondent”), so ordered by Judge Weisberg, on March 29, 2018. The stipulation awarded petitioner a judgment of possession against the respondent and a money judgment in favor of Petitioner in the amount of $2,649.25 as all rent due through March 31, 2018, along with the forthwith issuance of the warrant of eviction. Execution of the warrant was stayed through May 11, 2018, for payment. Upon default, warrant was to execute after service of the Marshal’s Notice of Eviction. The stipulation contained a future rent provision. On May 11, 2018, Respondent filed a pro se Order to Show Cause, alleging that repairs were not completed, and showing documentation from Human Resources that an application had been filed seeking the funds necessary to pay the rent due.. On the May 30, 2018 return date, a second pro se stipulation was entered into between the parties, which was so ordered by Judge Bacdayan. That stipulation further stayed the execution of the warrant until June 19, 2018, for payment of $1,648.50 as all rent due through May 31, 2018. Access was to be arranged between the parties for any repairs/conditions that still remained. On June 25, 2018, Respondent obtained a second Order to Show Cause returnable July 10, 2018. That application was supported by an HRA Approval in the amount of $2,649.25, dated June 25, 2018. On July 10, 2018, a third pro se stipulation was entered into and so ordered by Judge Bacdayan, which further stayed the execution of the warrant of eviction until July 31, 2018 to pay $3,297.23 as all the rent then due. That stipulation further provided that the Petitioner was to send a copy of the current lease to Respondent within ten days, which HRA needed to process and complete the One Shot Deal and effectuate payment. On July 31, 2018, Respondent obtained a third Order to Show Cause, returnable August 15, 2018, alleging that he had only recently received a copy of the lease renewal in the mail from the Petitioner and provided same to HRA. On August 15, 2018, another stipulation was entered into and so ordered by Judge Bacdayan, which further stayed the execution of the warrant of eviction until August 31, 2018 to pay $3,183.48 as all rent then due. Additional access was set for August 27 and 28, 2018, for petitioner to correct the same conditions first alleged on the march 29, 2018 stipulation. Thereafter, Respondent obtained two subsequent Orders to Show Cause, returnable October 1, 2018 and October 25, 2018, but failed to appear on either date and those applications were denied. On November 13, 2018, Respondent obtained another Order to Show Cause, returnable November 27, 2018. On that date, a stipulation was again entered into and so ordered by Judge Bacdayan which further stayed the execution of the warrant until December 10, 2018 to pay $3,410.75 as all rent due through November 30, 2018. Respondent thereafter obtained another Order to Show Cause, returnable December 24, 2018. The matter went before Judge Lach, and after argument, the Court granted the Order to Show Cause only to the extent of staying execution through January 4, 2019 for payment of $5,173 plus January 2019 rent. Thereafter, an Order to Show Cause was filed and obtained by Corporation Counsel of the City of New York, returnable February 14, 2019, which sought an appointment of a Guardian ad Litem for the Respondent. On February 14, 2019, Judge Bacdayan granted that part of the motion which sought the appointment of a GAL, but declined to vacate the judgment and warrant herein at that time. Respondent was given a referral to the legal Aid Society, and the matter was adjourned to March 14, 2019. The Court signed an Order on February 25, 2019 appointing Jonathan Rubin as the GAL for the Respondent. On March 14, 2019, the matter was further adjourned by Judge Breier to April 11, 2019. On April 11, 2019, the matter was further adjourned by Judge Bacdayan to May 9, 2019, for Respondent and the GAL to meet with Bronx Legal Services on April 12, 2019. Bronx Legal Services were retained, and filed a Notice of Appearance on May 9, 2019. Respondent thereafter filed the instant motion on May 21, 2019, which sought, among other things, to vacate or in the alternative to modify the stipulation and judgment of March 29, 2019. The matter was then adjourned several times for the purposes of motion practice and eventual argument. Argument was heard and completed, and decision was reserved. Respondent argues that because the preferential rent was a provision of the initial lease, the subsequent renewals must incorporate the preferential rent terms. RSC2522.5(g)(1) requires a landlord to offer renewals “on the same terms and conditions as the expired lease, except where the owner can demonstrate that the change is necessary in order to comply with a specific requirement of law or regulation…” Petitioner here argues that the Landlord lawfully obtained an increase in rent after the expiration of the two year LINC period, when the parties entered into their third lease in 2017, which raised the rent to the current alleged legal regulated rent of $1,762.25 per month. The Court recognizes the long-established principle that “stipulation of settlement are favored by the courts and are not lightly caste aside” Hallock v. State, 64 N.Y.2d 224, 230 (1984); Davis v. Davis, 292 A.D. 452, 452-3 (2d Dept 2002). The Court of Appeals has stated that to set aside a stipulation usually requires proof of fraud, collusion, mistake, accident, or some other ground of the same nature. Matter of Fruitiger, 29 N.y.2d 143, 149-150 (1971). However, a party may be relieved from the terms of a stipulation where extraordinary circumstances exist. Clark v. St James Tower, Inc., 16 Misc.3d 1116(A) (Sup. Ct. kings Co. 2007). As to the issues raised in Respondent’s motion, the law is explicit. When parties agree to a preferential rent which extends beyond a one lease renewal, that provision becomes a term and condition of that lease and is to be incorporated into the subsequent lease renewals. Colonnade Met., LLC v. Warner, 11 Misc. 3d 52,53, 812 NYS2d 209 [App Term 2nd Dept 2006]. Aijaz v. Hillside Place LLC, 3 Misc. 3d 754 (Civ Ct, Queens County 2004), aff’d as modified 8 Misc. 3d 73 (App Term 2nd and 11th 2005). Where parties show an intent to extend the term of a preferential rent beyond a single renewal, any subsequent renewal that does not incorporate such terms of the preferential rent is unenforceable, and as such is deemed null and void. Here, the record clearly reflects the parties’ intent to grant a preferential rent lasting beyond four lease renewals, in accordance with the terms of the LINC Rider. Petitioner voluntarily, and purposely, induced Respondent to enter into a lease agreement by offering a preferential rent of $1,268.00 per month. Thereafter, Public Assistance tendered and the Landlord accepted lump sum and monthly subsidy payments. Nowhere in its opposition does Petitioner provide any evidence or argument that it did not intend to be obligated by the terms of the parties’ agreement. Petitioner does not dispute the clear and concise mandates of the LINC Rider or the requirements of its terms. Additionally, Petitioner in fact signed the “Landlord Statement of Understanding”, where the Landlord again commits to offering Respondent five terms of preferential rent as a CONDITION to participate in the LINC program. Without specificity, Petitioner cites and relies on Alston arguing that Petitioner is RELEASED from the obligations of the LINC Rider. But there is a critical difference between this proceeding and Alston. Here, there is a an existing lease which was VOLUNTARILY entered into, and so Petitioner bound itself to the terms of the lease and Rider which incorporated the conditions of Petitioner’s participation in the LINC program. In Alston, NO landlord-tenant relationship had been created. Petitioner’s willingness to enter into the lease is evidenced by the very offer of the preferential rent. Petitioner chose to create the landlord-tenant relationship. The holding in Alston is that a landlord-tenant relationship could not be forced upon a landlord. Petitioner’s opposition, which lacks an affidavit of anyone with personal knowledge of the facts in this proceeding, does not even allege that Petitioner was in any way forced to accept Respondent’s LINC voucher. Nothing in Alston prevents or precludes a landlord from voluntarily binding itself to terms to the Lease herein and its Rider. In light of the above, the Court does find that the appropriate measure is to modify the stipulation and judgment of March 29, 2018 to reflect that the correct monthly rent was $1,293.36 per month for the period of November 1, 2017 to October 31, 2019. In reviewing Petitioner’s rent history printed on August 14, 2019, which starts with a $945.23 credit as of October 26, 2017, and which reflects all of the payments tendered and credited upon the Respondent’s behalf since then, the Court’s accounting shows numerous months where Respondent had in fact more than fully paid any rents due and had substantial credits. Respondent had in fact a credit of $807.24 as of July 31, 2019. Accordingly, in light of the analysis above, and in the interests of justice, Respondent’s motion is granted to the extent of deeming all rents due through July 2019 had in fact been paid in full. Judgment and warrant are vacated and the proceeding dismissed, without prejudice to any unpaid rents which may have accrued since August 1, 2019. This constitutes the decision and order of the court. Dated: September 16, 2019 Bronx, New York
