Opinion
No. 2014–77KC.
11-30-2015
SHARP IMAGE OF NY, LLC, Respondent, v. Leroy WILLIAMS, Appellant, and “John Doe” and “Jane Doe,” Undertenants.
Opinion
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this chronic-nonpayment holdover proceeding, the parties entered into a so-ordered stipulation of settlement on September 29, 2012, pursuant to which tenant was required, among other things, to make monthly rent payments by the 15th day of each month for a 12–month period. The stipulation specifically provided that time is of the essence and no breach shall be deemed de minimis. Upon tenant's default, landlord could move to restore the proceeding to the calendar for the entry of a final judgment. By order dated May 3, 2013, the Civil Court granted a motion by landlord to restore the proceeding to the calendar for the entry of a final judgment, finding that tenant had breached the stipulation multiple times. The order stayed the execution of the warrant until November 3, 2013 to allow tenant the opportunity to vacate the subject apartment in an orderly manner. A final judgment awarding landlord possession was entered on May 3, 2013.
In November 2013, tenant moved for leave to reargue or, in effect, to renew his opposition to landlord's prior motion or, in the alternative, to vacate the final judgment and restore the matter to the calendar. By order dated November 22, 2013, the Civil Court implicitly denied the branch of tenant's motion seeking to vacate the final judgment, granted the branch of tenant's motion seeking “reargument and/or renewal,” and “upon reargument and/or renewal,” adhered to its prior decision, explaining that tenant's “defaults continued unabated throughout the extended probationary period of this chronic late payment holdover proceeding.”
On this appeal from the November 22, 2013 order, tenant argues that he substantially complied with the stipulation, that enforcement of the stipulation is unconscionable under the circumstances, and that, in any event, landlord waived any breach of the stipulation by accepting late payments.
Enforcement of a stipulation remains subject to the supervision of the court (see Malvin v. Schwartz, 65 A.D.2d 769 [1978], affd 48 N.Y.2d 693 [1979] ), which is not necessarily bound by language in the stipulation stating that no breach shall be deemed de minimis (Brigham Park Co–Operative Apts., Sec # 3, Inc. v. Rock, 42 Misc.3d 141[A], 2014 N.Y. Slip Op 50220[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ), and which “always retains the power to vacate a warrant of eviction prior to its execution for good cause shown' “ (Harvey 1390 LLC v. Bodenheim, 96 AD3d 664, 664 [2012], quoting RPAPL 749[3] ). Here, however, the Civil Court properly declined to excuse tenant's defaults, as they “went to the heart of the proceeding and settlement” (175 E. Parkway Assoc. v. Baptiste, 31 Misc.3d 138[A], 2011 N.Y. Slip Op 50767[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2011] ). Contrary to tenant's argument, there are no circumstances present here that would make enforcement of the stipulation unconscionable. Finally, “there is no evidence that landlord's alleged acceptance of [tenant's] late payments indicated any intent to excuse the defaults or to revive the tenancy” (id. ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA AND SOLOMON, JJ., concur.