Opinion
No. LT–002135–12.
2012-07-31
Jonathan GIANNETTI, Petitioner(s) v. Donna GOBEN, John Doe and Jane Doe, Respondent(s).
Alexander E. Sklavos, Jericho, Attorney for Petitioner. Craig Feldherr, Esq., of counsel to Volunteer Lawyer's Project, Westbury, Attorneys for Respondent.
Alexander E. Sklavos, Jericho, Attorney for Petitioner. Craig Feldherr, Esq., of counsel to Volunteer Lawyer's Project, Westbury, Attorneys for Respondent.
SCOTT FAIRGRIEVE, J.
TRIAL DECISION ON STIPULATED FACTS
Petitioner, Jonathan Giannetti, commenced this holdover proceeding seeking to recover possession of the premises described as 27 Harding Avenue, Roslyn Heights, New York 11577 from the Respondent Donna Goben. The Respondent moves to dismiss, asserting that the court lacks subject matter jurisdiction over this proceeding.
On May 23, 2012, the parties and their counsel submitted a stipulation in lieu of trial, reducing this matter to one issue. The first clause of the stipulation states, “sole defense is raised that Petitioner did not have authority to terminate Respondent's license.” Furthermore, the “Respondent consents to this Court's jurisdiction and waives defenses thereto.” The parties stipulated that the premises are owned pursuant to a deed, wherein Petitioner, Jonathan Giannetti and Patricia Giannetti were tenants in common. Respondent was a licensee of the premises with permission and license granted by Patricia Giannetti; Respondent is Patricia Giannetti's daughter. Patricia Giannetti died on March 23, 2012. Petitioner Jonathan Giannetti did not give permission to Respondent to enter into possession or remain. Petitioner served the notice to quit annexed to the petition. The Respondent stipulated to receipt of the notice to quit and had no objection to the form or service thereof, but for the sole defense raised above. Respondent is in possession of the premises.
Both parties then stipulated that if the court agrees with the defense of the Respondent, this action shall be dismissed. However, if the Court does not recognize the defense of Respondent, judgment of possession and warrant of eviction shall be issued, subject to court's discretion as to date of eviction.
In the stipulation of settlement signed by both parties and allocuted by the court, Respondent acknowledged receipt of the notice to quit and had no objection to the form or service thereof. However, the Respondent now claims that the Petitioner's notice to quit is defective because (a) it is unclear by failing to set forth a full date upon which Respondent is to vacate (b) Petitioner purports to terminate a license that he never granted, and (c) it instructs Respondent to direct questions and comments to attorneys listed, without listing any attorneys. Respondent notes that pursuant to RPAPL 713, service of ten-day notice to quit is a pre-requisite to maintaining a summary proceeding under that article. Thus, the Respondent claims that since she was improperly served notice, this court does not have subject matter jurisdiction over this matter.
Stipulations of settlements are favored by courts and not lightly cast aside. Phokus Group v. Calcon, 7 Misc.3d 1013(A), 801 N.Y.S.2d 241, 2005 WL 927010, 4 (Kings Co.2005), Slip Op. 50585(U) (stipulation acted as waiver of procedural claim of improper venue) (quoting Hallock v. State, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 (1984)). This is because stipulations of settlement are meant to “cover all issues contained in the underlying action between [the parties]. Id. at *3, 485 N.Y.S.2d 510, 474 N.E.2d 1178. By its terms, all claims between [the parties] were to be resolved by the stipulation. Id. Thus, a stipulation of settlement, in combination with the conduct of the parties, constitutes a waiver of any purported defenses. Option One Mortgage Corporation v. Daddi, 60 A.D.3d 920, 874 N.Y.S.2d 822 (2nd Dep't 2009).
Respondents never raised the issue of jurisdiction at any time before nor during the signing of this stipulation. The stipulation included a clause stating, “Respondent consents to this Court's jurisdiction and waives defenses thereto.” Thus, the Respondents waived their jurisdiction defenses to any judgment in line with the stipulation of settlement. 34 Funding Assocs. v. Pollak, 26 A.D.3d 182, 811 N.Y.S.2d 352 (1st Dep't 2006) (holding that by signing a stipulation of settlement, Respondent consented to the jurisdiction of that court as well as to judgment against Respondent of foreclosure and sale.); See also Gnosis, LLC v. Soforte, LLC, 29 Misc.3d 1211(A), 2010 WL 4068963 (N.Y.Dist.Ct.2010).
However, Respondents argue that they can raise the issue of subject matter jurisdiction at any time during a proceeding, including after a stipulation of settlement is executed. While this court agrees that subject matter jurisdiction is not waivable, this Court does have subject matter jurisdiction over this matter. See Gnosis, LLC v. Soforte, LLC, 29 Misc.3d 1211(A), 2010 WL 4068963 (N.Y.Dist.Ct.2010).
The Petitioner's ten-day notice to quit stated:
Please take notice that Jonathan Giannetti, the person entitled to possession of the house located at 27 Harding Avenue, Roslyn Heights, N.Y. 11577, now occupied by you as a Licensee, elects to terminate the said premises on or before April 16, the undersigned will commence summary proceeding under Section 713, subd.7 of the Real Property Actions and Proceedings Law, to remove you as such Licensee therefrom.
Although the Petitioner failed to identify the year upon which Respondent was to vacate, the notice to quit is clearly dated April 6, 2012; indicating that the Respondent was to move out ten days after receipt of the notice on April 16, 2012. Moreover, Petitioner and Respondents also made appearances at this Court with counsel and signed a stipulation of settlement together that was allocuted by the court. Thus, the mere fact that the notice instructed Respondent to direct questions and comments to attorneys listed, without listing any attorneys, is immaterial.
New York Jurisprudence, Second Edition, expressly states that the death of a licensor revokes a license:
Because of the personal nature of a license, the death of a party terminates or revokes the license, so that the right of a licensee to occupy real property under a license ceases upon the death of the licensor. 49 N.Y. Jur.2d Easements and Licenses in Real Property § 238.
Although Respondent argues that Petitioner purports to terminate a license that he never granted, in the Trial Memorandum of Law submitted by counsel on June 13, 2012, Respondent concedes that Patricia death revokes Patricia's license.
New York Jurisprudence, Second Edition, explains the process of removing a licensee whose license has been revoked or terminated:
A special proceeding to recover possession of property is available to obtain the removal of a licensee whose license has been revoked or has terminated; provided, as in other cases, the statutory 10 days' notice to quit is given. Under the statute, where on is a licensee of the person entitled to possession of the property at the time of the license, and: (1) his license has expired; or (2) his license had been revoked by the licensor; or (3) the licensor is no longer entitled to a possession of the property, the licensee and his tenants, assigns, or legal representatives can be removed by summary proceedings at the application of the person entitled to possession, provided the statutory 10 days' notice to quit is given. 49 N.Y. Jur.2d Easements and Licenses in Real Property § 246.
This Court concludes that it has subject matter over this proceeding and that there are no defenses to this proceeding. Petitioner is entitled to judgment of possession and a warrant of eviction stayed until September 30th 2012.
So Ordered: