Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered October 22, 2004. The order denied landlord's motion to vacate a stipulation of settlement in a nonpayment summary proceeding.

Order affirmed without costs.

Landlord commenced this nonpayment summary proceeding against tenants in April 2003 seeking to recover alleged monthly rent of $554.33 for the months of November 2002 through April 2003. The parties entered into a stipulation of settlement, dated December 29, 2003, wherein tenants consented to the entry of a final judgment in the sum of $5,474.74, based on the monthly rent alleged in the petition. Landlord thereafter sought to set aside the stipulation on the ground of mutual mistake. Landlord contended that the regulated rent, which had been reduced to the sum of $554.33 by an order of the Division of Housing and Community Renewal (DHCR), had
been restored by a subsequent DHCR order issued April 12, 2002, but that it had not learned of the DHCR order restoring rent when it entered into the stipulation of settlement on December 29, 2003. The Civil Court ruled that the facts alleged did not constitute a basis to set aside the stipulation on the ground of mutual mistake.

Where a mistake of fact is attributable to the negligence or carelessness of the party seeking to vacate a stipulation, and there has been no fraud or deceit on the part of the other party thereto, such a mistake will not constitute a basis to set aside the agreement (see Da Silva v Musso, 53 NY2d 543, 552 [1981]; Lowe v Steinman, 284 AD2d 506, 508 [2001]). Since [*2]landlord had an opportunity to ascertain whether the rent had been restored prior to the commencement of the proceeding and the execution of the stipulation of settlement, it cannot avoid the consequences of its own carelessness by seeking to have the stipulation vacated. Accordingly, the order of the court below is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 27, 2006