DAWKINS v. RUFF (2005)

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered October 1, 2004.   The order denied tenant's motion to, in effect, vacate a stipulation of settlement, the final judgment and an income execution issued pursuant to the judgment.

Order reversed without costs, tenant's motion to vacate the stipulation of settlement, final judgment and income execution granted and matter remanded for all further proceedings.

 In this nonpayment proceeding, the parties entered into a stipulation of settlement wherein tenant agreed to the entry of a final judgment in favor of landlords for both her share of the rent and, in violation of the Second Partial Consent Decree in Williams v. New York City Housing Authority, 81 Civ. 1801 [S.D.N.Y.1995], the Section 8 portion of her rent.  “A Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent.   Absent a showing by the landlord of a new agreement ․ a Section 8 tenant does not become liable for the Section 8 share of the rent as rent' even after the termination of the subsidy (Shickler v. Thorpe, N.Y.L.J., Feb. 27, 2002 [App. Term, 9th & 10th Jud. Dists.];   Parkmore Props. v. Prasad, N.Y.L.J., Oct. 19, 1999 [App. Term, 9th & 10th Jud. Dists.] )” (Rainbow Assoc. v. Culkin, 2003 N.Y. Slip Op. 50771[U], 2003 WL 2004427 [App. Term, 2d & 11th Jud. Dists.];   see also Prospect Place HDFC v. Gaildon, 6 Misc.3d 135(A), 2005 N.Y. Slip Op. 50232[U], 2005 WL 487008 [App. Term, 1st Dept.] ).   In the case at bar, there was no such new agreement.   Thus, tenant's motion to vacate the stipulation of settlement, final judgment and income execution should be granted.

 Furthermore, there is an inspection report in the record indicating that the subject premises is a de facto multiple dwelling. In the absence of a multiple dwelling registration and conforming certificate of occupancy, a landlord cannot recover rent or use and occupancy and this restriction cannot be waived by stipulation (BFN Realty Assoc. v. Cora, 8 Misc.3d 139(A), 2005 N.Y. Slip Op. 51338[U], 2005 WL 2008901 [App. Term, 2d & 11th Jud. Dists.];   see Meaders v. Jones, 2003 N.Y. Slip Op. 51123[U], 2003 WL 21699947 [App. Term, 2d & 11th Jud. Dists.], affd. on other grounds 15 A.D.3d 490, 789 N.Y.S.2d 441 [2d Dept. 2005];  Willoughby Assoc. v. Dance-Lonesome, N.Y.L.J., June 6, 2003, 2003 N.Y. Slip Op. 51058(U), 2003 WL 21511323 [App. Term, 2d & 11th Jud. Dists.] ).

Because I find no basis to vacate the so-ordered stipulation, I respectfully dissent.

Initially, to the extent the majority contends that the stipulation impermissibly held tenant liable for the Section 8 share of the rent, no such argument was ever asserted below as a basis for vacating the stipulation.   Instead, tenant generally denied that she owed the amount sought by landlord.   Tenant's blanket denial was insufficient to alert the court below to any claim that the second partial consent decree in Williams v. New York City Housing Authority, 81 Civ. 1801 [S.D.N.Y.1995] prohibits a landlord from maintaining an action against a tenant for the Section 8 portion of the rent.   Thus, in my opinion, such claim is not preserved for this court's review (see generally Aguirre v. City of New York, 214 A.D.2d 692, 694, 625 N.Y.S.2d 597 [2d Dept. 1995];  Stilo v. County of Nassau, 122 A.D.2d 41, 45, 504 N.Y.S.2d 201 [2d Dept. 1986] ).   In any event, even if I were to review the claim in the interest of justice, I would uphold the order of the court below.

“Stipulations of settlement are favored by the courts and not lightly cast aside” (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] [citations omitted] ).  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequence of a stipulation made during litigation” (id.).   In my opinion, no basis exists to disturb the stipulation at issue here.

Tenant, with the benefit of counsel, negotiated a binding, so-ordered stipulation whereby she agreed to a final judgment sum of $5,452, and to vacate the premises by May 31, 2003.   While I agree with the majority that a Section 8 tenant is not liable for the Section 8 share of the rent, here, the stipulation constituted a new agreement that clearly shifted that liability to tenant.   The parties agreed that landlord would return tenant's security deposit and waive tenant's share of the rent, except for that portion which would have been covered by Section 8. Because the stipulation contained new terms not included in the original lease, it is a new agreement which tenant must honor.

To the extent the majority claims that the stipulation should be vacated based on the absence of a certificate of occupancy and a multiple dwelling registration, I disagree.   Noncompliance with the Multiple Dwelling Law does not implicate the Civil Court's subject matter jurisdiction and can be waived by a tenant by stipulation (see Meaders v. Jones, 15 A.D.3d 490, 789 N.Y.S.2d 441 [2d Dept. 2005];  346-52nd Realty, LLC v. La Estancia, Ltd., 7 Misc.3d 134(A), 2005 N.Y. Slip Op. 50684[U], 2005 WL 1106593 [App. Term, 1st Dept.] ).   Moreover, the absence of a certificate of occupancy does not relieve a tenant of its obligation to pay rent (see BFN Realty Assoc. v. Cora, 8 Misc.3d 139(A), 2005 N.Y. Slip Op. 51338[U], 2005 WL 2008901 [App. Term, 2d & 11th Jud. Dists. 2005] dissenting op. of Patterson, J., citing 9 Montague Terrace Assoc. v. Feuerer, 191 Misc.2d 18, 19-20, 740 N.Y.S.2d 553 [App. Term, 2d & 11th Jud. Dists. 2001] ).

PESCE, P.J., and BELEN, J., concur. WESTON PATTERSON, J., dissents in a separate memorandum.