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Civil Court, City of New York.

1130 SHEVA REALTY ASSOC. LLC, Plaintiff v. Larhonda SOTO a/k/a Zamurrad Baron, Defendant.

CV - 2319/16/NY

Decided: May 22, 2019

NEWMAN, O'MALLEY & EPSTEIN, LLC, Attorneys for Plaintiff, By: Lisa J. Ruiz, Esq., 217 Broadway, New York, New York 10007, 212.233.1050 MUSA-OBREGON LAW, PC, By: Richard B Sutin, Esq., Attorneys for Defendant, 55-21 69th Street, 2nd Floor, Maspeth, New York 11378, 718.803.1000, 646.398.3252


Plaintiff commenced this action against Larhonda Soto a/k/a Zamurrad Baron (Defendant) asserting $ 9254.92 in damages for breach of lease and attorneys' fees, in reference to the rental of apartment F4, at 1130 Anderson Avenue, Bronx, New York, 10452, (Subject Premises).


The summons and complaint were filed on February 16, 2016. On May 12, 2016, Defendant appeared, pro se, and filed an answer asserting a general denial. An initial court was set for July 7, 2016. On that date, the action was adjourned to August 26, 2016.

On August 24, 2016, Defendant appeared by counsel, and filed an answer and counterclaims. Defendant asserted seven affirmative defenses including: failure to state a cause of action; statute of frauds; release; statute of limitations; that damages are a result of Plaintiff's own conduct; unclean hands; and laches. Defendant asserted a counterclaim for $ 8000, based upon an alleged illegal lockout.

The court (Sokoloff, J) issued an order referring the action to the General Calendar, and directing Plaintiff to file a Notice of Trial once discover was complete.

On May 15, 2018, Plaintiff filed a substitution of counsel.

On January 16, 2019, Plaintiff moved to strike Defendant's answer for failing to comply with discovery. The motion was adjourned to February 20, 2019.

On February 20, 2019, the parties entered into a stipulation of settlement, wherein Defendant, by counsel, agreed to pay Plaintiff $ 9000 in full settlement of the action. Defendant was to make monthly payment of $ 150, commencing March 1, 2019, until such time as the debt was paid. The stipulation was signed by both attorneys for Plaintiff and Defendant.

The stipulation further provided for the withdrawal of Defendant's counterclaim.


On April 22, 2019, Defendant moved by order to show cause, pursuant to CPLR 5015(a)(1), seeking to vacate the stipulation of settlement. The motion was adjourned to May 20, 2019, for opposition.

On May 20, 2019, both parties appeared, Plaintiff filed opposition, and the court reserved decision. For the reasons set forth below the motion is denied.


On February 19, 2019 at approximately 5:30 PM, Jan Tamoor, Esq. Counsel for Defendant, called Ira Sitzer, counsel for Plaintiff and negotiated the terms of a settlement. The attorneys agreed that the action would be settled for $ 9000.00 and that the settlement amount would be payed out at $ 150 per month.

The next morning counsel for attorneys for both parties executed the stipulation which incorporated those terms in open court, and submitted the stipulation.

Defendant's attorneys now state that no one ever communicated with Defendant to obtain Defendant's consent to the terms negotiated by counsel.

Defendant now argues that the attorney who entered into the stipulation of settlement on February 20, 2019, Tesla M. Goodrich (Goodrich), did so without authority, and was only sent to court on that day, in place of another attorney, Jan M. Tamoor (Tamoor). Tamoor was scheduled to appear in place of the attorney of record, Richard Beck Sutin (Sutin), who had a conflict and could not appear in court.

Goodrich is a member of the same firm as Tamoor and Sutin. Plaintiffs' counsel had no reason to question Defendant's counsel's apparent authority, especially given that the terms had been negotiated the night before the court appearance.

In addition, Defendant's counsel sought to vacate the stipulation only once the first payment was missed, and well over one month subsequent to the execution of the stipulation and the resolution of the action. Pursuant to the stipulation, the first payment was due on March 1, 2019. The instant motion was filed April 2, 2019, after Plaintiff's counsel sent a notice of default, in or around March 28, 2019.

At the outset, the court notes that the moving papers do not set forth the correct standard to be applied in vacating a stipulation of settlement. The moving papers cite CPLR 5015(a)(1) which pertains to motions to vacate a judgment or order entered on default. In such a case, the movant would have to establish an excusable default and a meritorious defense or claim.

There was no default in this case and Defendant's argument that the standard the court should adopt is whether Defendant has an excusable default and meritorious defenses is rejected by the court.

Pursuant to CPLR § 2104 a stipulation of settlement is binding upon a party if it is in a writing subscribed either by the party, or by his or her attorney.

The standard for vacating a stipulation of settlement entered in open court was referenced by the Court of Appeals which held:

Stipulations of settlement are favored by the courts and not lightly cast aside. This is all the more so in the case of “open court” stipulations within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but is also essential to the management of court calendars and integrity of the litigation process. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.

[Hallock v. State, 64 NY2d 224, 230 (1984) (citations omitted).

Movant places much significance on the fact that Defendant was not in court on the date the stipulation was executed, and that the stipulation prepared by Plaintiff, in the preamble states that Defendant was appearing in person, when in fact Defendant appeared by counsel. The court does not agree that this detail is significant or that it warrants a contrary determination.

It is well settled that a stipulation of settlement entered in accordance with CPLR § 2104 may bind a client even where the stipulation exceeds the attorney's actual authority [Wil Can (USA) Group Inc. v. Shen Zhang 73 AD3d 1166; Anghel v. Utica Mutual Insurance Co. 164 AD3d 1294].

Based on the forgoing, Defendant's motion to vacate the stipulation of settlement is denied.

This constitutes the decision and order of this court.

Sabrina B. Kraus, J.

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