Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner’s motion to vacate the September 27, 2019 stipulation and Respondent David Whetstone’s cross-motion for an order of contempt, consolidated herein for disposition: Papers Numbered Petitioner’s Notice of Motion, Affirmation, Affidavit & Ex A 1, 2, 3, 4 Respondent’s Notice of Cross-Motion, Affirmation, Affidavit & Ex A-D 5, 6, 7, 8-11 Respondent’s Memorandum of Law 12 Petitioner’s Affirmation and Affidavit in Opposition 13, 14 Respondent’s Reply Affirmation and Memorandum of Law 15, 16 PROCEDURAL HISTORY This is a holdover eviction proceeding that was commenced by notice of petition and petition in February 2019 based upon the allegation that Respondent Karen Whetstone, the Rent Stabilized tenant of record, no longer used the subject apartment as her primary residence. Respondent David Whetstone appeared and retained counsel1, and, after a number of adjournments for various reasons including motion practice, on September 27, 2019 the parties resolved the case by a “Stipulation of Discontinuance” (“the Stipulation”), so-ordered by Housing Court Judge Weissman, that, inter alia, recognized David Whetstone as the successor to Karen Whetstone’s tenancy, acknowledged Respondent’s payment to Petitioner of $11,871.40 and discontinued the proceeding with prejudice. At issue before the court now is a provision of the Stipulation which states that Petitioner “will offer to Respondent a lease in his name on or before Oct. 4, 2019 for a lease term commencing October 1, 2019 based on a current rent of $935.70. Lease to be emailed to Respondent’s counsel [and] absent the need for any corrections or revisions, Respondent to return signed copy on October 10, 2019 in person.” Further, “The parties acknowledge that the Court retains jurisdiction over enforcing the terms of this stipulation.” Petitioner moves to vacate the Stipulation and set the case down for trial and Respondent cross-moves for “civil contempt of and noncompliance with” the Stipulation. These motions have been pending for over a year and a half, with the delay attributed initially to the COVID-19 pandemic, then to the parties’ protracted attempts through counsel to settle the motions and then because Respondent filed a “Hardship Declaration” pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA), which stayed the proceeding through August 31, 2021 under CEEFPA Part A, §6. That stay has now both expired and been enjoined by the United States Supreme Court, Chrysafis v. Marks (2021 US LEXIS 3635, 2021 WL 3560766 [Aug 12, 2021]). PETITIONER’S MOTION Petitioner’s attorney asserts that on October 1, 2019, as required by the Stipulation, she emailed Respondent’s attorney the new lease — in Respondent’s name, commencing October 1, 2019 and with a rent of $935.70 – and that Respondent failed to sign and return it. The motion is supported by Petitioner’s attorney’s affirmation, an affidavit of Petitioner’s managing agent and a copy of the Stipulation. Petitioner asks the court to vacate the Stipulation, return the parties “to the status quo” prior to the signing of the Stipulation and set the case down for trial. Respondent opposes the motion and asserts that the proffered lease was rejected because it was in the wrong format, arguing that, as a successor tenant, under Rent Stabilization Code (“RSC”) §2523.5(b) Respondent is “entitled to be named as a tenant on the renewal lease”, not proffered a new lease. Respondent argues that there is no basis to vacate the stipulation, citing Hallock v. State of New York (64 NY2d 224, 230, 474 NE2d 1178, 485 NYS2d 510 [1984]) and Matter of Frutiger (29 NY2d 143, 150, 272 NE2d 543, 324 NYS2d 36 [1971]). Respondent also argues that the procedure for challenging alleged noncompliance with a stipulation is a motion for contempt, not a request to vacate it, that it is Petitioner who has not complied with the agreement and that, accordingly, Respondent seeks contempt against Petitioner in his cross-motion. RESPONDENT’S CROSS-MOTION Respondent asserts that Petitioner has refused to offer a proper lease as required by the Stipulation and asks the court to punish Petitioner for civil contempt pursuant to Judiciary Law §750 et seq. and CPLR §5104. Respondent states in his supporting affidavit that without a lease he has been unable to access “various benefits and services” such as rent assistance. Respondent seeks relief of a $250 fine, actual damages, costs and attorney’s fees. In opposition to Respondent’s cross-motion, Petitioner asserts that the lease it proffered fully complied with the terms of the Stipulation and further “contained the same terms and conditions as Karen Whetstone’s lease.” Affidavit of Ivette Moss, sworn to July 20, 2020, at 5. Copies of Karen Whetstone’s original lease dated August 1, 1992 and the October 1, 2019 lease proffered to Respondent, both prepared on a “Plain Language Standard Apartment Lease” form, are attached to Petitioner’s reply papers. Petitioner asserts not only that it did comply with the parties’ agreement but that the cross-motion for contempt must be denied because the Stipulation is not based on a “lawful court order” and the court lacks jurisdiction to order Petitioner to offer the Respondent a specific type of lease. Petitioner argues that the Housing Court has limited equitable power, may not grant injunctive relief except in proceedings for the enforcement of housing standards and certain provisional remedies and lacks the jurisdiction to issue an order of contempt for the failure to give Respondent a renewal lease, citing to the New York City Civil Court Act §§203[o], 209 [b]; Broome Realty Associates v. Sek Wing Eng (182 Misc 2d 917, 918, 703 NYS2d 360, 361 [App Term 1st Dep't 1999]) and N Waterside Redevelopment Co, LP v. Febbraro (256 AD2d 261, 682 NYS2d 202 [1st Dep't 1998], lv dism’d 93 NY2d 888, 689 NYS2d 430 [1999]). Petitioner posits that Respondent is not without a remedy to enforce the Stipulation as he can file an administrative complaint at the New York State Division of Housing and Community Renewal (DHCR) or a plenary action in State Supreme Court. Petitioner alternately argues that should the Court find it does have the jurisdiction to adjudicate a claim of contempt for Petitioner’s failure to offer Respondent a renewal lease, Respondent fails to make out such a claim because Petitioner’s copy of the Stipulation is not “so ordered” and even if it had been, the Stipulation does not include a clear and unequivocal requirement that Petitioner offer Respondent a renewal lease, as opposed to a new lease in his name. Petitioner also asserts that it is prepared to send Respondent a renewal lease on the form prescribed by DHCR to commence on October 1, 2019 at the monthly rent agreed upon of $935.70. Moss Affidavit at 9. On reply, Respondent argues that Petitioner raised no valid grounds for vacating the Stipulation; that the court has the requisite jurisdiction to enforce the Stipulation via contempt as it includes a provision stating that “the Court retains jurisdiction over enforcing” its terms; fines, fees and actual damages are all appropriate forms of relief; and contempt is appropriate because (1) the Stipulation was in fact “so ordered” by the court and therefore constitutes a lawful court order; (2) “The express terms of the Stipulation, coupled with the unambiguous requirements of the law, create an unequivocal mandate sufficient for a contempt finding,” Reply Memorandum of Law at p. 5; and (3) Respondent has been prejudiced by Petitioner’s failure to comply with the Stipulation. DISCUSSION Courts have long favored and encouraged parties to enter into stipulations of settlement as a means of expediting and simplifying the resolution of disputes, and “unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course.” Mitchell v. NY Hosp (61 NY2d 208, 214, 473 NYS2d 148, 151, 461 NE2d 285, 288 [1984]). Traditional principles of contract interpretation apply to settlement agreements, Brad H v. City of NY (17 NY3d 180, 185, 928 NYS2d 221, 224, 951 NE2d 743, 746 [2011]), as follows: A written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties. To determine whether a writing is unambiguous, language should not be read in isolation because the contract must be considered as a whole. Ambiguity is determined within the four corners of the document; it cannot be created by extrinsic evidence that the parties intended a meaning different than that expressed in the agreement and, therefore, extrinsic evidence “may be considered only if the agreement is ambiguous”. Ambiguity is present if language was written so imperfectly that it is susceptible to more than one reasonable interpretation. Id. (17 NY3d at 185-86, 928 NYS2d at 224, 951 NE2d at 746). Once entered into, stipulations of settlement “are favored by the courts and are not lightly cast aside.” Hallock v. State of New York (64 NY2d 224, 230, 474 NE2d 1178, 485 NYS2d 510 [1984]). This is especially so in the case of “open court” stipulations where the party seeking vacatur is represented by counsel. Weissman v. Bondy & Schloss (230 AD2d 465, 467-68, 660 NYS2d 115, 117 [1st Dep't 1997], app dismd, 91 NY2d 887, 691 NE2d 637, 668 NYS2d 565 [1998]); Zombeck v. Segesta (2013 NY Misc LEXIS 1488, 2013 NY Slip Op 30733[U][Civ Ct NY Co 2013])(citing Town of Clarkstown v. MRO Pump & Tank, Inc (287 AD2d 497, 731 NYS2d 231 [2nd Dep't 2013]). Accordingly, parties who are represented by counsel generally will not be relieved from the consequences of a stipulation entered into during litigation unless “there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident,” Hallock, supra, or “where public policy is affronted”, Various Tenants of 446-448 W 167th St v. NYC Dep’t of Hous Pres & Dev (153 Misc 2d 221, 223, 588 NYS2d 840, 841 [App Term 1992], aff’d, 194 AD2d 311, 603 NYS2d 718 [1st Dep't 1993]). Here, in September 2019, the parties through their attorneys so thoroughly resolved the proceeding that they titled their final agreement a “Stipulation of Discontinuance”, rather than a “Stipulation of Settlement”, and included a provision stating: “This holdover proceeding is discontinued with prejudice”. The Stipulation was submitted to the court and the copy in the court file was so-ordered by Housing Court Judge Weissman. The parties resolved the fundamental issues at stake, with Petitioner acknowledging that Respondent David Whetstone was the successor to Respondent Karen Whetstone’s tenancy and that he had made a payment of $11,871.40 to Petitioner. Neither party now seeks to enforce the agreement. Compare, e.g., 952 Assocs, LLC v. Palmer (52 AD3d 236, 859 NYS2d 138 [1st Dep't 2008]). Rather, Petitioner seeks vacatur of the Stipulation and Respondent moves to punish Petitioner for contempt. However, neither party has met the applicable legal standard to secure the relief sought. Petitioner makes no showing of any fraud, collusion, mistake, accident or affront to public policy warranting vacatur of the Stipulation. Petitioner simply argues that the agreement should be vacated because Respondent did not comply with it by signing and returning what Petitioner characterizes as a properly proffered lease. As Petitioner does not demonstrate a legal basis to vacate the two-attorney agreement which not only settled but discontinued this proceeding the motion must be denied. 44 Wall Owner, LLC v. Failla (29 Misc 3d 133[A], 918 NYS2d 397 [App Term 1st Dep't 2010]); Montgomery Trading LLC v. Siegel (25 Misc 3d 128[A], 901 NYS2d 908 [App Term 1st Dep't 2009]). Turning to Respondent’s motion for contempt, under Judiciary Law §753(A)(3)(1), a party that disobeys a court’s lawful, clear mandate may be punished for civil contempt, by fine and/or imprisonment, where “a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced”. See, e.g., Various Tenants of 446-448 W 167th St v. NYC Dep’t of Hous Pres & Dev, supra. To prevail, the moving party must establish that a lawful order was in effect with an unequivocal mandate, that the order was disobeyed, that the party who allegedly disobeyed the order knew about it and that the moving party was prejudiced as a result of the other party’s failure to comply with the order. El-Dehdan v. El-Dehdan (26 NY3d 19, 41 NE3d 340, 19 NYS3d 475 [2015]); McCormick v. Axelrod (59 NY2d 574, 583, 453 NE2d 508, 512-13, 466 NYS2d 279, 283 [1983]). Housing Court judges have the power to punish for contempt, New York City Civil Court Act §110(e), Dep’t of Hous Pres & Dev v. 24 W 132 Equities, Inc (137 Misc 2d 459, 462, 524 NYS2d 324, 327 [App Term 1987], aff’d, 150 AD2d 181, 540 NYS2d 711 [1st Dep't 1989]), and a so-ordered settlement agreement may properly be the subject of a contempt motion, Axin v. Delibab Corp (24 AD2d 974, 265 NYS2d 591 [1st Dep't 1965]). However, where the order is not clear and unequivocal, contempt does not lie. See, e.g., Matter of Storman v. NYC Dep’t of Educ (95 AD3d 776, 777, 945 NYS2d 281, 282 [1st Dep't 2012])(respondent should not have been held in contempt for allegedly disobeying a court order to remand for “further proceedings” as it was not a “clear and unequivocal” mandate); Collins v. Hayden on the Hudson Condo (223 AD2d 434, 435, 637 NYS2d 51, 52 [1st Dep't 1996])(reversing lower court’s order of civil contempt against defendant where order directed it “to forthwith commence repairs of the conceded common elements” and “what portion of the premises constitute ‘common elements’ of the condominium subject to the board’s obligation to repair is at the very heart of the dispute between the parties”); 239 E 115th St HDFC v. Olunkunle (29 Misc 3d 64, 67, 910 NYS2d 835, 837 [App Term 1st Dep't 2010]) (affirming lower court’s denial of tenant’s motion to hold landlord in contempt where ” [n]either the stipulation nor a subsequent order of the court requiring landlord to relocate tenant in accordance with the stipulation expressed “a clear [and] unequivocal mandate” to landlord to relocate tenant to a one-bedroom apartment at a particular”). Respondent’s claim that Petitioner violated a “clear mandate” of the parties’ so-ordered Stipulation is not borne out by the language of that agreement. The parties did not specify, as they could have, that Petitioner was required to comply with Rent Stabilization Code §2523.5(b) by proffering a “renewal lease”. The Stipulation does not use that phrase “renewal lease” nor does it mention or annex a copy of the standard DHCR “RTP-8″ renewal lease form. See DHCR Fact Sheet ## 4 and 30 (“Lease Renewal in Rent Stabilized Apartments” and “Succession Rights”) at https://hcr.ny.gov/rent-regulation-fact-sheets2 The conclusion that the Stipulation is equivocal is starkly demonstrated by the parties’ conflicting interpretations of its language. Under the parties’ agreement, had Petitioner offered Respondent a renewal lease, rather than the lease it did offer, the argument opposite to what Respondent now makes could just as likely have been made: that the Stipulation should be interpreted to require Petitioner to provide Respondent with an original lease in his name, not a renewal lease. In essence, Respondent seeks first to have an ambiguity in the Stipulation resolved in his favor and then to enforce the Stipulation via contempt. However, as stated above, contempt does not lie where the order at issue is not clear; as the Stipulation fails to express a clear and unequivocal mandate, the remedy of civil contempt is not available. See, e.g., 239 E 115th St HDFC v. Olunkunle (29 Misc 3d 64, 66-67, 910 NYS2d 835, 836-837 [App Term 1st Dep't 2010]). Petitioner’s offer after-the-fact in its reply papers to provide Respondent with a backdated renewal lease is of no moment, as this settlement proposal was rejected by Respondent as noncompliant with the RSC and the motions were submitted for the court to decide. It bears noting that under RSC §2523.5, when an owner delays in furnishing a proper and timely renewal lease its effective date is extended at the tenant’s option, RSC §2523.5(c)(1), and, in the meantime, the tenant retains the protections of the Rent Stabilization Law and Code “as if the expiring lease were still in effect,” RSC §2523,5(d). Hughes v. Lenox Hill Hosp, supra (226 AD2d at 8-9, 651 NYS2d at 422 [1st Dep't 1996]). CONCLUSION For the reasons set forth above, the court denies both Petitioner’s motion and Respondent’s cross-motion. This constitutes the Decision and Order of this Court, a copy of which is being uploaded to NYSCEF. Dated September 2, 2021
