Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion by respondent to vacate a two-attorney stipulation and restoring proceeding for a hearing: Papers Numbered Order to Show Cause, Affidavit, Affirmation, and Exhibits Annexed 1 Opposition Affirmation and Exhibits Annexed 2 Reply Affirmation and Exhibit Annexed 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this Motions is as follows: Introduction and Procedural History Petitioner, Shalimar Leasing L.P., commenced this holdover proceeding against the Tenant of Record Ramona Medina (“Medina”), Respondent Mercedes Torres (“Torres”), “John Doe” and “Jane Doe” to recover possession of Apartment 18O located at 98-23 Horace Harding Expressway, Corona, New York 11368 (“Subject Premises”) based upon non-primary residence. On or about June 4, 2018, Petitioner issued a Notice of Landlord’s Intention to Refuse to Renew Lease (“Golub Notice), which provides, in pertinent part, that: “PLEASE TAKE NOTICE that the Landlord hereby served you notice pursuant to 2524.2(c)(2) and 2524.4(c) of the Rent Stabilization Code of the City of New York…the Landlord herein, Shalimar Leasing Limited Partnership, refuses to renew your Lease which currently expires on September 30, 2018, based upon your failure to maintain occupancy of Apartment 18O at 98-23 Horace Harding Expy, Corona, NY 11368 as your primary residence… “PLEASE TAKE FURTHER NOTICE that pursuant to 2524.4(c) of the Rent Stabilization Code, thirty (30) days concurrent notice is hereby given to you and to all other occupants of the Subject Premises of the termination of your right to occupy the subject apartment as of September 30, 2018 (lease expiration date), and of the Landlord’s intention to commence an action with the Civil Court of the City of New York to recover possession of the Premises on the grounds that the Premises are not being occupied by you as your primary residence.” Thereafter, on or about November 7, 2018, Petitioner commenced this holdover proceeding. Respondent Torres appeared in this proceeding and retained JASA Legal Services (“JASA”) as her counsel. Respondent Torres filed an Answer on or about February 27, 2019 and asserted a general denial as well as the affirmative defense and counterclaim for succession rights as a non-traditional family member and a counterclaim of legal fees and costs. The parties, pursuant to a two-attorney stipulation of settlement, dated October 8, 2019 (“October 2019 Stipulation”), settled this proceeding. In the October 2019 Stipulation, Respondent Torres consented to a final judgement of possession, issuance of the warrant of eviction forthwith and execution stayed through April 15, 2020 for Respondent to vacate conditioned upon monthly use and occupancy payments. Respondent also agreed to pay the arrears in the amount of $3,454.24 by November 25, 2019. Thereafter, Respondent Torres discharged JASA and retained Queens Legal Services. Respondent Torres now moves by Order to Show Cause to vacate the October 2019 stipulation and, upon vacatur, to restore the proceeding to the court calendar for a hearing on the merits. In the alternative, Respondent requests staying the execution of the warrant of eviction for good cause so that she may satisfy the terms of the October 2019 Stipulation. Petitioner opposes. Discussion Vacating Two-Attorney Stipulation and Restoring Case to Calendar It is well settled that stipulations of settlement “are favored by the courts and not lightly cast aside” (Hallock v. State, 64 NY2d 224, 230 [1984]). The Court of Appeals in Hallock v. State (64 NY2d 224, 230) held that strict enforcement of open court stipulations “not only serves the interest of efficient dispute resolution but is also essential to the management of court calendars and the integrity of the litigation process” (see 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 372 [App Div, 1st Dept 1987]). Upon a showing of good cause, stipulations of settlement may be set aside in order to prevent injustice (see Matter of Frutiger, 29 NY2d 143,150 [1971]). Good cause may be demonstrated if either party has “inadvertently, unadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice” (Matter of Frutiger, 29 NY2d 143, 150). In such an instance, a court may vacate a stipulation and restore the pre-stipulation status quo “in order to promote justice and prevent wrong” (Matter of Frutiger, 29 NY2d 143, 150; see Gerard Manor Corp. v. Maria, 54 Misc3d 1201[A][Civ Ct, Bronx County 2016]; see also 443-445 Jefferson Ave., LLC v. Severin, 55 Misc3d 140[A][App Term, 2d, 11th & 13th Jud. Dists. 2017]). Furthermore, “where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident” (Hallock v. State of New York, 64 NY2d 224, 230) the court “possesses the discretionary power to relieve parties from the consequences of a stipulation effected during litigation upon such term as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into unadvisedly or that it would be inequitable to hold the parties to it” (Genesis Holding, LLC v. Watson, 5 Misc3d 127[A][App Term, 1st Dept 2004]; see 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373). In this instance, Respondent Torres argues that she inadvertently, unadvisably and improvidently entered into the October 2019 Stipulation and agreed (i) to waive her right to a trial on her succession claim; (ii) to vacate her long term rent stabilized residence; (iii) to pay a substantial amount of arrears, and (iv) to pay ongoing use and occupancy. Respondent Torres asserts that she is an elderly monolingual Spanish speaker with Limited English Proficiency (“LEP”) and that she has resided at the Subject Premises for approximately twenty-two (22) years. She argues that she did not have proper interpretation and language access throughout this proceeding prior to retaining Queens Legal Services. She argues that even though the October 2019 Stipulation was read out to her in Spanish, due to her communication barrier with her prior attorney, the meaning of the terms of the October 2019 Stipulation or her other options aside from signing the stipulation were not fully explained to her. Respondent also argues that the October 2019 Stipulation is an unduly harsh settlement and that she waived her meritorious succession defense due to her LEP. She further asserts that, due to her LEP, she had not been able to effectively communicate her succession claim prior to retaining Queens Legal Services, and that she wanted to go to trial in this proceeding rather than vacate the Subject Premises, her long term rent stabilized residence. Respondent acknowledges that she agreed to pay ongoing use and occupancy for the Subject Premises. In the alternative, Respondent Torres requests additional time to comply with the October 2019 Stipulation as she made a large payment towards the arrears and she has been making ongoing use and occupancy payments. In opposition, Petitioner argues that Respondent Torres has failed to demonstrate good cause to vacate the October 2019 Stipulation or to stay the execution of the warrant of eviction. Petitioner asserts that the October 2019 Stipulation must be strictly enforced as Respondent has not alleged any fraud, mutual mistake or other basis for voiding the October 2019 Stipulation. Petitioner disputes that Respondent Torres has a meritorious succession claim. Petitioner acknowledges that Respondent has been making use and occupancy payments. Here, in the interest of justice and in light of the public policy and preference in the law for deciding cases on their merit, the Court finds that Respondent has sufficiently established that she entered into the October 2019 Stipulation unadvisedly (see Matter of Frutiger, 26 NY2d 143; see also 443-445 Jefferson Ave., LLC v. Severin, 55 Misc3d 140[A]; see also Confe Realty Corp. v. Jimenez-Nunez, 2020 NY Slip Op 50295[U][App Term, 1st Dept 2020]). Respondent showed that her LEP prevented her from understanding the terms of the October 2019 Stipulation due to the communications barrier with her prior counsel, and it is reasonable to conclude that had Respondent Torres been advised by her prior counsel that she was forfeiting her right to trial on her succession claim that Respondent Torres would not have given her consent. The Court also finds that Respondent Torres has sufficiently established that the terms of the October 2019 Stipulation were unduly harsh, because Respondent agreed to forfeit a potentially meritorious succession defense and to vacate the Subject Premises for no real consideration (see Genesis Holding, LLC v. Watson, 5 Misc3d 127[A]). Furthermore, Respondent agreed to pay rental arrears as an occupant and a successor in interest is not a tenant until he or she becomes a party to a lease or rental agreement (see Strand Hill v. Gassenbauer, 41 Misc3d 53, 54-55 [App Term, 2d Dept 2013]; see also 615 Nostrand Ave Corp. v. Roach, 15 Misc3d 1 [App Term, 2d Dept 2006]). Respondent Torres has been a long term occupant in the Subject Premises and, with assistance of her new counsel, she has shown a colorable succession claim to the Subject Premises and there is a strong preference in the law for cases being decided on their merit (see Wade v. Village of Whitehall, 46 AD3d 1302, 1303 [App Div, 3rd Dept 2007]). Additionally, Respondent has also been making use and occupancy payments. Therefore, based on the foregoing, Respondent’s Order to Show Cause to vacate the October 2019 Stipulation is granted and the proceeding is restored to the court calendar for a hearing (see Matter of Frutiger, 29 NY2d 143, 150; see also Confe Realty Corp.v. Jimenez-Nunez, 2020 NY Slip Op 50295[U][App Term, 1st Dept 2020]). Conclusion Accordingly, Respondent’s motion is granted in part. This proceeding is restored to the court calendar on April 7, 2020 at 9:30 am in Part Q, Room 407 for a hearing on Respondent Torres’ succession claim. This constitutes the Decision and Order of this Court. Dated: March 4, 2020
