SUFFOLK REAL ESTATE SOLUTIONS INC v. MARQUEZ (2022)

ORDERED that so much of the appeal as was taken by Melissa Marquez is dismissed, as she is not aggrieved by the order appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination, following a hearing, of occupant's motion to, in effect, vacate so much of the final judgment as awarded petitioner the sum of $5,000.

In this summary proceeding commenced pursuant to RPAPL 713 (5), only Guillermo Montero (occupant) appeared. He entered into a stipulation of settlement which provided for the entry of a final judgment awarding possession to petitioner. It further provided that “respondent” would vacate the premises by July 31, 2019 and that, in the event of a failure to comply, petitioner would be awarded $5,000 representing use and occupancy. Petitioner's attorney subsequently filed an affirmation of noncompliance, alleging, insofar as is relevant to this appeal, that occupant had failed to vacate the premises by July 31, 2019. A final judgment was entered only against occupant on August 29, 2019, awarding petitioner possession and the sum of $5,000, and ordering the issuance of a warrant of eviction, which was executed in or around October 2019. Occupant thereafter moved by order to show cause to, in effect, vacate so much of the final judgment as awarded petitioner $5,000, asserting that he had complied with the stipulation of settlement in that the premises was completely vacant as of July 29, 2019. Petitioner submitted no written opposition. After oral argument but without holding a hearing, the District Court denied occupant's motion.

In light of the conflicting allegations between the affirmation of noncompliance and occupant's affidavit regarding compliance with the stipulation of settlement, it was error for the District Court to deny occupant's motion without holding a hearing to determine the disputed issues of fact (see City of Poughkeepsie v Nutra-Vet Research Corp., 159 AD2d 675 [1990]; Anis Realty, LLC v Roman, 56 Misc 3d 128[A], 2017 NY Slip Op 50822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; United Props. Corp. v Remax Prop. Network, Inc., 23 Misc 3d 135[A], 2009 NY Slip Op 50811[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination, following a hearing, of occupant's motion to, in effect, vacate so much of the final judgment as awarded petitioner the sum of $5,000.

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.