BACKGROUND On April 30, 2019, Petitioner commenced this summary nonpayment proceeding seeking to recover possession of the eleventh and twelfth floors at 1001 Avenue of the Americas, New York, New York 10018 (Subject Premises), based on the allegation that Respondent, the tenant of record failed to pay rent due for the Subject Premises. Respondent is in the business of providing office space and office services to various businesses located in the Subject Premises. Respondent alleges it has been in said business for over 20 years, and that it recently renovated the Subject Premises at a cost of $1.2 million dollars. On May 23, 2019, Respondent appeared herein by counsel, and filed an answer asserting three affirmative defenses, including that the rent demand was defective, and that Petitioner failed to name necessary parties and was precluded from evicting anyone other than Respondent from possession. THE PENDING MOTION On November 22, 2019, Respondent was evicted. On November 26, 2019, Respondent moved for an order allowing Respondent and its licensees to be restored to possession and related relief. Both parties appeared on the return date. The court heard oral argument and reserved decision. THE STIPULATION OF SETTLEMENT On July 22, 2019, the parties entered into a stipulation of settlement. The stipulation provided for the entry of a money judgment in the amount of $426,775.33, representing all arrears due through July 31, 2019, except electricity charges, and a judgment of possession1. Respondent agreed to pay the arrears in 14 monthly installments. The stipulation provided for forthwith issuance of the warrant of eviction. Execution of the warrant was stayed “as set forth herein.” The stipulation further provided that during the pay out schedule Respondent would pay ongoing base rent and additional rent by the 10th of each month, and that all payments received would first be applied to the current rent and additional rent and then to the arrears. In the event of a default of payments, Petitioner was required to issue a five day notice of default and Respondent was entitled to cure by wiring to Petitioner the amount in default no later than the close of business on the day of the expiration of the Five (5) Day Cure Period. Pursuant to paragraph 10 of the stipulation, if the parties could not agree on the computation of the current rent, Respondent was entitled to bring an order to show cause. The last paragraph of the stipulation provides “(n)othing herein shall constitute a cure of Respondent’s monetary defaults in the arrears as memorialized in the money judgment.” Notably, nowhere in the stipulation was it explicitly provided that Petitioner could execute on the warrant of eviction on default of payments. This issue is raised by Respondent in its moving papers and not addressed by Petitioner in its opposition papers. The stipulation does provide that on default of any payments due Respondent will be required to pay to petitioner reasonable attorneys’ fees and costs for the enforcement of the stipulation. In addition to Respondent, the original pleadings also listed as undertenants John & Jane Doe Nos 1-5 and “ABC Corporation” Nos 1 to 5. Paragraph 4 of the stipulation provides: Respondent hereby represents that it is in a sole, primary and direct leasehold with the Petitioner for possession of the premises sought to be recovered herein and that the persons John Doe Nos. 1 through 5 and Jane Doe Nos. 1 through 5 and ABC Corporation Nos. 1 to 5 have no greater rights to the premises than Respondent and that they are in possession under certain occupancy agreements with Respondent that establish that they are subordinate to the rights of Respondent and in fact have no greater rights to the premises than the Respondent. As such, this proceeding is discontinued as against John Does Nos 1 through 5 and Jane Does Nos. 1 through 5 and ABC Corporation Nos. 1 through 5 without prejudice. Finally, the stipulation provides that both parties shall be deemed to have drafted the stipulation, in order to avoid any negative inference being drawn by the court against the drafter. PROCEEDINGS SUBSEQUENT TO THE EXECUTION OF THE STIPULATION The stipulation of settlement was so-ordered by the court (Padilla, J), on August 7, 2019. The warrant of eviction issued on August 22, 2019. On August 29, 2019, Petitioner issued a five day notice of default stating that payment of $30,483.98, which was due on August 25, 2019 had not been made. Petitioner acknowledges this default was timely cured. On September 17, 2019, Petitioner issued a second notice of default regarding $109,036.90, which was due on September 10, 2019. The Marshal issued a notice of eviction dated October 2, 2019. Again, Petitioner acknowledges this default was cured, and confirmed in writing to Respondent on October 7, 2019, that Petitioner would not be proceeding with any eviction based on said default. On October 17, 2019, Petitioner issued its third notice of default regarding $114,455.06 which was due on October 10, 2019. The Marshal issued a second notice of eviction dated October 31, 2019. On November 4, 2019, Respondent paid the sum less $17,218.55. This is the default that resulted in Respondent’s eviction. Respondent and its licensees were evicted on November 22, 2019. DISCUSSION A stipulation is an independent contract which is subject to the principles of contract law (Adelsberg v. Amron 103 AD3d 571), will be construed in accordance with contract principles and the parties’ intent (Sharp v. Stavisky, 221 AD2d 216, 217). Contracts should be enforced as drafted (W.W.W. Assocs. v. Giancontieri, 77 NY2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639). Generally a court may not consider extrinsic evidence to modify the agreement (Serna v. Pergament Distributors, Inc., supra). Whether a written agreement is ambiguous is a question of law to be resolved by the court (Van Wagner Adv. Corp. v. S & M Enters., 67 NY2d 186, 191, 501 N.Y.S.2d 628, 492 N.E.2d 756). The court does not find that the stipulation is ambiguous. The stipulation was the result of extensive negotiations between parties represented by counsel, and did not in any way provide for execution of the warrant on default of payment. Such an intent may not be presumed, since it would add to or vary the unambiguous terms of the agreement (New York Univ. v. Eckstein, 190 Misc 2d 161, 162). Based on the foregoing, Respondent’s motion is granted. The court finds that Respondent is entitled to be restored to possession forthwith, the Marshal’s notice dated October 31, 2019 is deemed null and void, and the stipulation between the parties remains in full force and effect. Since the stipulation does not provide for execution of the warrant, Petitioner may move the court for any appropriate relief pursuant to the stipulation, including an order permitting execution of the warrant based upon any uncured defaults.2 As the stipulation did not allow for execution of the warrant, the court need not reach the other contentions of the parties pertaining to the default. This constitutes the decision and order of the court. Dated: November 26, 2019 New York, New York
