VERNON MANOR COOP. APTS. v. DIALLOBE

1167-16.

2017 NY Slip Op 50528(U)

VERNON MANOR COOPERATIVE APARTMENTS, SECTION II, INC., Petitioner, v. NURI DIALLOBE and JAMILAH AMINAH DIALLOBE, Respondent.

City Court of Mount Vernon.


Attorney(s) appearing for the Case

Kurzman, Eisenberg, Corbin & Lever, LLP, One North Broadway, White Plains, New York 10601, Attorneys for Petitioner.

Nuri Diallobe, 505 East Lincoln Avenue, Unit E-221, Mount Vernon, New York 10552, Respondent pro se.

Jamilah Aminah Diallobe, 505 East Lincoln Avenue, Unit E-221, Mount Vernon, New York 10552, Respondent pro se.


ADAM SEIDEN, J.

Petitioner commenced this nonpayment action in April 2016 seeking to recover $2,472.00, representing outstanding rental arrears for the period of January 2016 through April 2016.

On May 23, 2016 the parties entered into a Stipulation of Settlement in court, wherein the respondent acknowledged owing $3,289.00 in arrears through May 2016 and provided that respondent was to pay $300.00 on May 23, 2016, the date of the Stipulation, and $331.50 per month from June 1, 2016 through November 1, 2016 in addition to her current rent starting June 1, 2016, until all rent was up to date. The Stipulation provides a final judgment and a warrant issued in favor of the petitioner was granted but that said warrant was stayed if respondent made the aformentioned payments. The Stipulation further provides that if the payments were not made as provided for in the Stipulation, upon petitioner's application without notice to the respondent, the stay will be vacated, the judgment balance due in full and a warrant for eviction will be issued forthwith. The Stipulation of Settlement was so ordered by the Court.

On or about January 27, 2017 petitioner filed an affidavit regarding respondent's noncompliance with the terms of the Stipulation and based upon said affidavit a judgment for petitioner in the amount of $5,633.00 was granted and a warrant of eviction was issued on January 30, 2017.

Subsequently, on February 23, 2017 respondent filed an order to show cause seeking to vacate the warrant of eviction and the judgment in favor of the petitioner.In support of the motion, respondent merely stated that he had issues with a lack of hours at work. Based upon respondent's conclusory allegation that he is having gainful employment issues as a basis for a vacatur of the agreed upon judgment and warrant, this Court refused to sign respondent's order to show cause. Respondent then made an application to the Appellate Term. By Order dated February 23, 2017, the Second Department Appellate Term signed respondent's order to show cause and gave a hearing date for the motion to be heard of March 9, 2017 and granted a temporary stay "conditioned upon the movant depositing the sum of $5,633.00 on or before 4:00 pm on March 8, 2017".

Respondent failed to deposit the sum of $5,633.00 as per the Order and accordingly, on the March 9, 2017 hearing date, the Court vacated the stay of the warrant.

This Court recognizes that stipulations of settlement are favored by the courts, and their terms should not be lightly set aside, especially where they are entered in open court. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or duress should a party be relieved from the consequences of a consent stipulation. See Perrion v Bimasco, 234 A.D.2d 281, 651 N.Y.S.2d 53 (2nd Dept. 1996)

Pursuant to the terms of the stipulation, respondent acknowledged owing $3,289.00 in arrears through May 2016 and provided that respondent was to pay $300.00 on May 23, 2016, the date of the Stipulation, and $331.50 per month from June 1, 2016 through November 1, 2016 in addition to her current rent starting June 1, 2016, until all rent was up to date. Respondent failed to abide by the terms of the stipulation. Respondent's has merely stated that the judgment and warrant should be vacated because he is having issues with his employment due to a lack of hours at work. While the Court is not indifferent to respondent's employment issues, as a matter of law, respondent has raised no grounds to disturb the stipulation or vacate the judgment and warrant of eviction.

Accordingly, the order to show cause seeking to vacate the judgment in favor of the petitioner for $5,633.00 and warrant of eviction is denied. A renewed warrant of eviction shall issue forthwith.

This constitutes the Decision and Order of this Court.


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