Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered January 25, 2006. The order denied appellants' motion to, inter alia, vacate final judgments of possession.

Order affirmed without costs.

Following a judgment of foreclosure, petitioner instituted this proceeding for possession of the subject premises (see RPAPL 713 [5]). On June 13, 2005, petitioner and appellant Rehan Raja entered into a so-ordered stipulation of settlement wherein petitioner waived all use and occupancy on condition that the premises be vacated by September 13, 2005. It was further agreed that petitioner would have a final judgment of possession and warrant of eviction, the execution of which was stayed until September 13, 2005. In addition thereto, it was agreed that in the event "both parties execute [a] contract to sell/buy [the] premises by September 13, 2005," the stipulation would be superseded by the contract of sale. Final judgments were entered on June 13, 2005 awarding possession to petitioner against Rehan Raja, on consent, and against the other appellants, on their default in appearing. On June 28, 2005, a stipulation was entered into in Supreme Court wherein petitioner herein, in return for a discontinuance by appellants herein of their appeal in the Supreme Court foreclosure proceeding, agreed to tender a deed to the subject premises upon payment of the sum of $920,000 on or before September 1, 2005. The stipulation expressly stated that "(t)here will not be any Contract of Sale issued in connection with this matter" and that appellants understood that this will merely be a "cash for deed" transaction. Thereafter, appellants moved to vacate the Civil Court final [*2]judgments, asserting, inter alia, that the Supreme Court stipulation constituted a contract of sale which superseded the June 13, 2005 stipulation, and that there had been no default.

The provision in the Supreme Court stipulation in which petitioner agreed to sell the subject premises as a "cash for deed" transaction, which provision did not obligate appellants to purchase, did not constitute a contract of sale or a "contract to sell/buy [the] premises," as the specific terms of the Supreme Court stipulation so noted. Rather, it merely constituted an offer by petitioner to enter into a unilateral contract (of sale), the acceptance of which offer could only be accomplished by performance, i.e., by appellants' tender of the appropriate sum in a timely manner (see Papa v New York Tel. Co., 72 NY2d 879 [1988]). Thus, following appellants' failure to timely perform the offered "cash for deed" transaction, the June 13, 2005 stipulation remained in effect. In view of the foregoing, the order denying appellants' motion to vacate the final judgments of possession is affirmed.

Pesce, P.J., and Belen, J., concur.
Golia, J., taking no part.
Decision Date: February 26, 2007