RIVERA v. KABA (2019)

Judgment (Brenda Rivera, J.), entered July 2, 2018, modified to reduce plaintiff's recovery to the principal sum of $4,455; as modified, judgment affirmed, without costs.

The portion of plaintiff-landlord's complaint which seeks damages for unpaid rent through October 6, 2017, was precluded under the doctrine of collateral estoppel (see Conason v. Megan Holding, LLC, 25 NY3d 1, 17 [2015]), because the question of possession of the apartment and of the amount to be paid for use and occupancy through October 6, 2017 was previously decided by a Civil Court judgment that incorporated a stipulation of settlement between the parties providing for use and occupancy at $372 per month (see Haberman v. Emanuel, 189 AD2d 556, 557 [1993]). There was no reservation in the stipulation for plaintiff to seek any amount greater than the $372 per month agreed upon for this period.

With respect to plaintiff's claims for unpaid use and occupancy accruing after defendant failed to vacate the premises by the stipulated October 6, 2017 date, such claims are not barred by the prior stipulation (see Ruth v Shalom Bros., 276 AD2d 408 [2000]). The evidence supports a finding that defendant is obligated to pay $1,550 per month, plus a $35 late fee, for the period after October 6, 2017.

We have reduced the judgment accordingly.

Per Curiam.