Opinion
570150/14
11-03-2014
Berco Realty LLC. Petitioner-Landlord-Appellant, v. Ami Thiombiano, Respondent-Tenant-respondent.
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
Landlord appeals from an order of the Civil Court of the City of New York, Bronx County (Leslie A. Stroth, J.), dated October 4, 2013, which granted tenant's motion to vacate a stipulation of settlement and consent final judgment, and for leave to conduct discovery in a nonpayment summary proceeding.
Per Curiam.
Order (Leslie A. Stroth, J.), dated October 4, 2013, insofar as appealable, affirmed, with $10 costs.
While a stipulation is essentially a contract and should not be lightly set aside, the court possesses the discretionary power to relieve parties from the consequences of a stipulation "if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it" (1420 Concourse Corp. v Cruz, 135 AD2d 371, 373 [1987], appeal dismissed 73 NY2d 868 [1989], citing Matter of Frutiger, 29 NY2d 143, 150 [1971]). Tenant, now represented by counsel, has submitted documentary evidence which shows the existence of an arguably meritorious rent overcharge claim. In the circumstances, we sustain the court's discretionary determination to relieve tenant of her uncounseled decision to consent to a possessory judgment, and allow her to defend the landlord's rent claim on the merits (see Striver 140 LLC v Cruz, 1 Misc 3d 29 [2003]).
Landlord was not aggrieved by that portion of the order which granted tenant leave to conduct discovery and its appeal therefrom must be dismissed, since landlord did not oppose tenant's discovery motion below (see Moore v Federated Dept. Stores, Inc., 94 AD3d 638 [2012]; Desilva v City of New York, 15 AD3d 252 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 03, 2014