Opinion
06-08-2017
In re EMBASSY HOUSE EAT LLC, Petitioner–Appellant, v. DYAN P by Her Article 81 Guardian JASA, Respondent–Respondent.
Cullen & Associates, P.C., New York (Wayne L. DeSimone of counsel), for appellant. Morris K. Mitrani, PC, New York (Morris K. Mitrani of counsel), for respondent.
Cullen & Associates, P.C., New York (Wayne L. DeSimone of counsel), for appellant.
Morris K. Mitrani, PC, New York (Morris K. Mitrani of counsel), for respondent.
Order, Supreme Court, New York County (Andrea Masley, J.), entered August 12, 2016, which granted respondent tenant's motion to vacate a so-ordered stipulation, dated May 16, 2014, and the resulting judgment of possession and warrant of eviction, unanimously affirmed, without costs.
The record supports the motion court's finding that respondent lacked the capacity to enter into the stipulation and thus showed good cause to vacate it (see Matter of Frutiger, 29 N.Y.2d 143, 150, 324 N.Y.S.2d 36, 272 N.E.2d 543 [1971] ; Matter of New York City Hous. Auth. v. Jackson, 48 A.D.3d 818, 819, 853 N.Y.S.2d 138 [2d Dept.2008] ; Genesis Holding, LLC v. Watson, 5 Misc.3d 127[A], 2004 N.Y. Slip Op. 51218[U], 2004 WL 2360008 [App.Term, 1st Dept.2004] ). The evidence shows, among other things, that the City Marshal referred the elderly respondent to Adult Protective Services 10 months after she entered into the stipulation, that she had a history of depression and anxiety, that her apartment had mold violations since 2010, that she had a sensitivity to mold, and that the mold and other ailments affected her physical and mental condition during the course of the various proceedings. Unlike the tenant in Ng v. Chalasani, 51 Misc.3d 134(A), 2016 N.Y. Slip Op. 50544(U), 2016 WL 1532590 (App.Term, 2d Dept.2016), relied upon by petitioner, respondent offered more than "[m]ere conclusory assertions of stress and depression" (id. at *2).
We have considered petitioner's remaining arguments and find them unavailing.
TOM, J.P., SWEENY, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ., concur.