Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Papers Numbered Order to Show Cause, Affidavit in Support, Memo of Law, Exhibits 1 Affirmations in Opposition, Exhibits 2 DECISION/ORDER In this commercial landlord-tenant holdover action, respondent filed the instant motion to stay the enforcement of the parties’ two-attorney stipulation of settlement dated October 28, 2024. Petitioner opposes. The court grants respondent’s order to show cause to the following extent: The parties entered into a two-attorney stipulation of settlement dated October 28, 2024, whereby inter alia, respondent agreed to pay petitioner $145,705.14, by October 31, 2024 (see NYSCEF Doc. No. 35, 6[i]). If respondent failed to make timely payment, petitioner agreed to provide a five (5) day notice to cure, and if respondent did not cure within that time frame, petitioner could seek a final judgment of possession against respondent with a warrant of eviction to issue forthwith (see id., 17). Respondent failed to make the $145,705.14 by October 31, 2024. Petitioner sent respondent a notice of default on November 4, 2024, stating that respondent had until November 9, 2024, to cure its default (see NYSCEF Doc. No. 48). Respondent failed to cure its default by November 9, 2024. On November 11, 2024, petitioner filed an affirmation of default in support of an application for final judgment of possession and warrant of eviction on NYSCEF (see NYSCEF Doc. No. 36). Respondent filed its instant order to show cause the next day (see NYSCEF Doc. No. 39). Respondent states it was late in payment because its principal responsible for wiring the funds to petitioner suffered a heart attack and was hospitalized in Florida (see NYSCEF Doc. No. 40, 15). Respondent further asserts that its bank would only allow its principal to make such a large wire transfer in person at the branch in Vineland, NJ (see id.). Respondent states that its principal was released from the hospital on November 8, 2024, and flew back to New Jersey on or after November 12, 2024 (see id., 16). Respondent appeared in court on November 20, 2024, the order to show cause return date, with a bank check for $145,705.14 to give to petitioner. Petitioner refused to accept it. Respondent states it has invested and spent thousands of dollars on the premises and that the parties’ lease runs through 2033 (see id., 18). Since 1900, the Court of Appeals has stressed the principle that in New York, the law abhors a forfeiture (see Mooney v. Byrne, 163 NY 86 [1900]; Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d 352 [1st Dept 2005]). The court retains control over the enforcement of parties’ stipulations of settlement where it is left subject to court action and is the basis for a judgment (see Goldstein v. Goldsmith, 243 AD 268 [2d Dept 1935] cited with approval in Small v. Some, 98 NYS2d 654 [App Term, 1st Dept 1950]). The court will afford relief from enforcement of a stipulation if the result would be unjust (see Hyman Embroidery Works, Inc. v. Action House, Inc., 89 AD2d 515 [1st Dept 1982]). Additionally, RPAPL 749(3) states that the court retains “the power to stay or vacate [a] warrant [of eviction] for good cause shown prior to the execution thereof” (RPAPL 749[3]). Here, under the circumstances, the court finds that strict enforcement of the parties’ stipulation of settlement would result in an injustice and that respondent has shown good cause to stay the issuance of a warrant of eviction. Accordingly, respondent’s order to show cause is granted to the extent that respondent shall tender by bank check or wire transfer, and petitioner shall accept payment of * $145,705.14, no later than November 22, 2024. On the condition that respondent * tenders such payment by November 22, 2024, the court relieves respondent from strict enforcement of the parties’ stipulation and denies petitioner’s application for the issuance of a judgment of possession and a warrant of eviction. Accordingly, it is hereby ORDERED that respondent’s order to show cause is granted to the extent that that respondent shall tender by bank check or wire transfer, and petitioner * shall accept payment of $145,705.14, no later than November 22, 2024. On the * condition that respondent tenders such payment by November 22, 2024, the court relieves respondent from strict enforcement of the parties’ stipulation and denies petitioner’s application for the issuance of a judgment of possession and a warrant of eviction. This constitutes the decision and order of the court. * The court was informed that although this decision was issued on 11/20, it is not being uploaded to NYSCEF until today — 11/22. Therefore, the decision is amended only to the extent that respondent shall have until 11/24/2024 to make the payment of $145,705.14. Dated: November 22, 2024
