Opinion
Index No. 328144/22
09-06-2023
33 Rhode Island Inc., Petitioner, v. Nelva Cintron, Respondent.
Azoulay Weiss, LLP Attn: Rachael Eastlund, Esq. Attorneys for Petitioner - 33 Rhode Island LLC Law Offices of Joseph M. Dash Attn: Joseph M. Dash, Esq. Outgoing Attorney for Respondent - Nelva Cintron
Unpublished Opinion
Azoulay Weiss, LLP Attn: Rachael Eastlund, Esq. Attorneys for Petitioner - 33 Rhode Island LLC
Law Offices of Joseph M. Dash Attn: Joseph M. Dash, Esq. Outgoing Attorney for Respondent - Nelva Cintron
Sergio Jimenez, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's order to show cause (motion seq. 2) seeking to vacate the stipulation entered into June 27, 2023 and any other relief as the court may find appropriate:
Papers Numbered
Order to Show Cause with affidavits and exhibits 1 (NYSCEF #28-39)
Affirmation in Opposition and exhibits 2 (NYSCEF #40)
The instant motion in this nonpayment, commenced in November of 2022, seeks to vacate the stipulation of settlement dated June 27, 2023. After a full briefing on the issue, the parties appeared on September 5, 2023, the court heard argument and reserved decision.
Motion to Vacate Stipulation
Respondent argues that his client should not be held to this stipulation because, respondent claims, that she never wanted the agreement, and it was only through pressure from her prior attorney that she acquiesced. Counsel states that such stated desire, in conjunction with a variety of alleged defects in the petition, justify the vacatur of the stipulation. Respondent states that she had pictures of building conditions and violations and had two witnesses ready to testify as to the state of the building and her apartment.
Petitioner argues that there was no duress, that ineffective assistance of counsel does not apply in this type of proceeding and that the mere non-existence of access dates does not invalidate an agreement. At oral argument, petitioner's counsel further argued the agreement was entered into after an exhaustive back and forth (as shown by the stipulation amendments and additional sheet). Petitioner also argues, in essence, that the stipulation was a bargained for agreement, that there was no coercion, fraud or other malfeasance that would allow the court to vacate the stipulation. The moving party bears the prima facie burden of proof to obtain the relief sought. Matter of Stop & Shop Cos. Inc. v. Assessor of the City of New Rochelle, 32 Misc.3d 496 (Sup.Ct. Westchester Co, 2011).
Stipulations of settlement are heavily favored by the courts and should not be lightly cast aside (Hallock v State, 64 N.Y.2d 224 [1984]). Further it is only where there is fraud, collusion mistake or accident that a party should be relieved from the consequences of a stipulation made during litigation (Matter of Greenberg, 215 A.D.3d 967 [2d Dept 2023]). This is especially true of cases where the party seeking to set aside a stipulation was, at the time represented by counsel (Cassagnol v Village of Hempstead, 214 A.D.3d 766 [2d Dept 2023]).
Here, respondent was represented and after hours of negotiation, did the parties enter into this agreement. While new respondent's counsel argues that he would not have entered into the agreement, that type of second guessing is not the basis to invalidate an agreement. The agreement on its face is not unconscionable or improvident only because new counsel states they would not have entered into it. Further, where the agreement was negotiated by sophisticated parties, all of whom were represented by counsel at the time, it is not unjust to enforce the terms of the stipulation (McKenzie v Vintage Hallmark, 302 A.D.2d 503 [2003]; Ruru & Assoc LLC v Weinberg Holdings LLC, 2023 NY Slip Op 50392[U][App Term 1st Dept, 2023]). Respondent may have recourse against her former attorneys if they did, in fact, represent her in an inappropriate manner but that recourse is not as against petitioner. A stipulation of settlement signed by an attorney may bind their client even if it exceeds the attorney's actual authority if the authority had apparent authority to act on their client's behalf (Anghel v Utica Mutual Insurance Company, 164 A.D.3d 1294 [2d Dept, 2018]). Here the attorney had not just apparent but actual authority and respondent was also a present signatory. As such, the motion is denied.
Conclusion
For the reasons set forth above motion sequence 2 is denied in its entirety. In the interest of justice, the schedules set forth by the stipulation is extended to October 31, 2023 and November 30, 2023 as the two pay dates. The timeframe for the lease renewal to be provided is also extended to 30 days from the date of the order if it has not yet been done, commencing as required by law. All other aspects of the stipulation remain in effect. This constitutes the Decision and Order of the Court.