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Civil Court, City of New York.



Decided: March 29, 2019

For Petitioner: Hertz, Cherson, & Rosenthal, P.C., 118-35 Queens Boulevard, 9th Floor, Forest Hills, New York 11375 For Respondent: Emilio Paesano, Esq., Mobilization for Justice, Inc., 540 East Fordham Road, Bronx, NY 10458

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion:

Papers Numbered

Order to Show Cause and Affidavits Annexed 1

Supplemental Affirmation and Affidavit 2, 3

Answering Affirmation 4

Replying Affidavits & Affirmation 5, 6

Supplemental Affirmation in Further Support 7

Supplemental Affirmation in Opposition 8



After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:


Diego Beekman Mutual Housing Association Housing Development Fund Corp., (“Petitioner”), commenced this summary holdover proceeding against Tomasina McClain, (“Respondent”), residing at 683 East 140th Street, Apt. 6-J, Bronx NY 10454, (“Premises”), alleging Respondent had committed a nuisance by creating “Collyer” 1 like conditions at the apartment. On April 30, 2018, the initial court date, Respondent stipulated to vacate the premises by June 30, 2018.2 Thereafter, Respondent obtained an order to show cause returnable July 16, 2018, which was granted by order affording her until July 31, 2018 to vacate the premises. Respondent obtained counsel in early August 2018 after her pro-se order to show cause was signed but before it was heard.

Although the pending order to show cause was brought as a pro se request for “more time” to vacate, the motion has been treated as one seeking to vacate the April 30, 2018 stipulation. The parties have fully briefed the issue. The court heard argument on October 31, 2018 and again on March 27, 2018 after supplemental papers were served and filed.


Stipulations of settlement are favored by the courts and are “not lightly cast aside.” (Hallock v. State of New York, (64 NY2d 224, 230, 485 NYS2d 510 [1984]; Matter of Galasso, 35 NY2d 319, 321, 361 NYS2d 871 [1974] ). As explained by the Court of Appeals, “strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process.” (Hallock, supra ).

However, it is well settled that the court possesses the discretionary power to relieve parties from the consequences of a stipulation “if it appears that the stipulation was entered into inadvisably or that it would be inequitable to hold the parties to it.” (Berco Realty LLC v. Thiombiano, 45 Misc 3d 129(A), 999 NYS2d 796 [App Term, 1st Dept 2014], quoting 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373, 521 NYS2d 429 [1st Dept 1987], citing Matter of Frutiger, 29 NY2d 143, 150 [1971]; Genesis Holding LLC v. Watson, 5 Misc 3d 127(A), 798 NYS2d 709 [App Term, 1st Dept 2004] ). “The discretion of a court is not that closely confined [to the grounds commonly cited]” and an unjust stipulation should be vacated when the parties may be returned to their former status. (Solack Estates, Inc. v. Goodman, 102 Misc 2d 504, 506 [App Term, 1st Dept 1979], affd 78 AD2d 512 [1980] ). In 144 Woodruff Corp. v. Lacrete (154 Misc 2d 301, 305 [Civ Ct, Kings County 1992] ), the court stated that, while lack of representation is not sufficient in and of itself to vacate a stipulation, “a party's lack of representation at the time of entry into the stipulation is a significant factor to be considered in determining whether good cause exists to vacate the stipulation.”

New York courts routinely vacate stipulations signed by pro se tenants who fail to realize and to assert viable defenses to their landlords' claims. (See 2701 Grand Ass'n LLC v. Morel, 50 Misc 3d 139(A), 31 NYS3d 924 [App Term, 1st Dept 2016] (vacating stipulation of previously unrepresented tenant who submits arguably meritorious defense); 2722 8th LLC v. Watson (10 Misc 3d 140(A), 814 NYS2d 565 [App Term, 1st Dept 2006] ) (reversing lower court's denial of tenant motion to vacate stipulation where tenant, “now represented by counsel, has submitted documentary evidence which shows the existence of possible defenses” to the landlord's claims); Tabak Assoc., LLC v. Vargas, 48 Misc 3d 143(A), 20 NYS3d 294 [App Term, 1st Dept 2015] (potential meritorious defenses should not be forfeited by uncounseled decision to consent to judgment); Northtown Roosevelt LLC v. Daniels, 35 Misc 3d 137(A), 951 NYS2d 87 [App Term, 1st Dept 2012] (possible defenses sufficient for court to vacate stipulation and let tenant defend on the merits) ).

In this matter, Respondent avers she did not realize she could ask for the opportunity to cure. Indeed, it appears that a cure period could have been afforded Respondent, even after trial. (Lincoln Terrace v. Snow, NYLJ, Nov. 23, 1983 at 5, col 3, 1983 NY Misc LEXIS 4233 [App Term, 1st Dept 1983] (We think tenant was entitled to relief under RPAPL section 753(4). That statute directs the court to grant a ten day stay of issuance of the warrant in proceedings based upon a claim that the tenant has breached a provision of the lease, so that the tenant has an opportunity to correct the breach and preserve the tenancy. While this proceeding is couched in terms of nuisance, rather than violation of a substantial leasehold obligation, the statute, remedial in nature, should be broadly applied wherever possible to avoid needless and unwarranted forfeitures of dwelling space) [emphasis added]; 222 E 12 Realty v. Yuk Kwan So, 54 Misc 3d 63, 65, 48 NYS3d 1 [App Term, 1st Dept 2017] (We also note that efforts were previously taken to assist tenant in curing the condition so that he could avoid eviction.); Grove Equities LLC v. Butensky, 61 Misc 3d 130(A), 2018 NY Slip Op 51409(U) [App Term, 1st Dept 2018] (Contrary to landlord's claim, the evidence did not show that these alterations caused lasting or permanent injury to the premises or were not capable of meaningful cure. Since RPAPL § 753[4] must be “liberally construed to spread its beneficial effects as widely as possible”, the trial court appropriately provided an opportunity to cure, so as to avoid a forfeiture of this long-term (29-year) tenancy.) [internal citations omitted]; 45-48 47th Street Corp v. Murphy, 45 Misc 3d 23, 25, 993 NYS2d 866 [App Term, 2nd Dept 2014] (it appears that tenant also inadvertently waived her right to a post-judgment period in which to cure) ).

Respondent's counsel also makes a cogent argument that Ms. McClain might qualify for a reasonable accommodation, or that such accommodation could have been offered. (See RCG -UA Glenwood, LLC v. Young, 9 Misc 3d 25, 801 NYS2d 481 [App Term, 2nd Dept 2005];

Recently, the Appellate Division in Prospect Union Associates v. DeJesus, (167 AD3d 540, 544, 91 NYS3d 36 [1st Dept 2018] ), noted:

No specific diagnosis is necessary for a person to be “handicapped” and protected under the statute. In fact, the determination may even be based upon the observations of a lay person. The appointment of an article 81 guardian for tenants sufficiently establishes that these tenants are “handicapped” within the meaning of the FHA, leading us to consider whether they are entitled to a reasonable accommodation. What is “reasonable” varies from case to case, because it is necessarily fact-specific. The overarching guiding factor, however, is that a landlord is obligated to provide a tenant with a reasonable accommodation if necessary for the tenant to keep his or her apartment. The “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the handicapped individual] equal opportunity to use and enjoy a dwelling” is a discriminatory practice. A landlord does not have to provide a reasonable accommodation if it puts other tenants at risk, but should consider whether such risks can be minimized.

The circumstances before us warrant a hearing on whether tenants are entitled to a permanent stay of eviction as an accommodation. More narrowly, the issue is whether, with the involvement of the article 81 guardian and its management of their affairs, tenants can fulfill their lease obligations and avoid eviction. Housing Court failed to consider whether with ongoing supportive services and suitable monitoring tenants can continue to live an orderly existence in the apartment without harming or affecting their neighbors. [internal citations omitted].

This court is further guided by the clear public policy of keeping rent-stabilized tenants in their homes whenever possible. (See 2013 Amsterdam Avenue Housing Association, L.P. v. King, 2019 WL 1322418, 2019 NY Slip Op. 29074 [App Term, 1st Dept 2019] (We note, also, that in view of tenant's disabilities and the serious conduct at issue, that the parties should explore reasonable accommodations that will enable tenant to fulfill his lease obligations and avoid eviction, i.e., ongoing supportive services and suitable monitoring. This may even include, if warranted, the commencement of a proceeding by an appropriate party for the appointment of a Mental Hygiene Law article 81 guardian.) [internal citations omitted] ). There is also a strong policy of providing attorneys to respondents in housing court. (See generally, 2247 Webster Ave. HDFC v. Galarce, 62 Misc 3d 1036, 1044, 90 NYS3d 872 [Civ Ct, Bronx County 2019] (“In light of the implementation of UAC and the data supporting its remedial effects, this court cannot hold that representation by an attorney would not have altered the course or the outcome of this proceeding in some meaningful way for the respondent.”).

In balancing the equities, this court vacates the April 2018 stipulation and the subsequent order. It is undisputed Respondent has been in possession for more than 6 years, that the premises are subject to rent stabilization, and that the respondent is a section 8 voucher holder who states she suffers from depression. There is a minor child in possession. Additionally, Respondent offers that she could have cured had she known it was a possibility. Her Guardian Ad Litem, Paula Campbell, alleges the nuisance condition has been abated with the help of Respondent's son. Importantly, Respondent was not represented when she entered the stipulation. The court has considered Petitioner's arguments and finds them compelling. However, while Petitioner may still prove its case at trial, without vacatur, Respondent is in immediate danger of losing her rent stabilized home.


Based on the foregoing, it is,

SO ORDERED, Respondent's motion is granted. The April 30, 2018 stipulations is vacated as are the attendant judgment and warrant. The July 16, 2018 Order is likewise vacated. Respondent is directed to serve and file an answer within (21) days of the date on this Decision and Order. The proceeding is adjourned to May 16, 2019 for all purposes, including settlement or trial. This constitutes the Decision and Order of the court.



1.   The court uses “Collyer” as short hand for general allegations of accumulation of property throughout the apartment as described in the pleadings.

2.   The court notes that a thorough allocution was done by the Hon. Kimon Thermos on April 30, 2018.

Shorab Ibrahim, J.

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