Petitioner commenced the instant nuisance holdover proceeding against the rent stabilized respondent on the grounds of failure to provide access to effectuate repairs. On June 25, 2007, the parties, through counsel, entered into a "Stipulation of Discontinuance" ("the Discontinuance"). It provides for the entry of a final judgment of possession, forthwith issuance of the warrant, and a stay of execution of the warrant for five days. The Discontinuance states that the petitioner will supply a letter to future landlords regarding the respondent's tenancy; a copy of the letter is annexed. The letter states respondent "is a rent regulated tenant who has always paid her rent timely and has lived at 950 Second Avenue for many years. She has now agreed to a substantial compensation to re-locate, the amount of which is confidential." The Discontinuance references a "binding confidential agreement" separately entered into by the parties.

The separate agreement is a Stipulation of Settlement ("the Stipulation"). Because the petitioner was negotiating with the other remaining tenant in the building and did not want the terms of the Stipulation known, the parties agreed that it would be held in escrow by the petitioner's attorney and filed in court only after the remaining tenant vacated. The Stipulation provides for monetary compensation to the respondent, contingent upon her compliance with the obligation to keep the terms confidential.

The Stipulation further provides that if the other remaining tenant negotiates a larger compensation package, then the respondent shall be entitled to additional compensation. To effectuate this provision the petitioner agrees to notify respondent's counsel within three business days of an agreement with the other tenant and to provide a certified copy of the agreement. The petitioner further agrees to provide "any other agreements or writing or documents related to any compensation received by Kelleher for her surrendering and vacating her apartment at the Premises."

The respondent now moves to compel the petitioner to honor the terms of the Stipulation by providing a copy of any agreement entered into with the other tenant. In support of the motion the respondent submits an affidavit dated August 17, 2007. She states "I have learned from my former neighbor, Ms. Joan Kelleher, that she executed an agreement with the Petitioner or a successor of the Petitioner by which she has promised to vacate the property located at 950 Second Avenue on or before September 6, 2007 and that she has already received part of the full compensation for her surrender of the unit and more shall be paid upon her complete surrender." The respondent asserts that she will be "deeply affected" by Ms. Kelleher's [*2]surrender, and that pursuant to the Stipulation the petitioner is obligated to provide a copy of the agreement entered into with Ms. Kelleher. The respondent does not annex a copy of the Stipulation due to the confidentiality of the terms, but offers to produce it at the time of the argument of the motion.

In further support of the motion the respondent submits an affirmation from counsel stating that upon learning of Ms. Kelleher's circumstances from the respondent, he contacted counsel for the petitioner. In response he received a letter from petitioner's attorney dated August 13, 2007, stating "I am not in possession of any agreement at all, nor have I been asked to write one."

In opposition to the motion and in support of petitioner's cross-motion for an order directing the respondent to disgorge the settlement funds paid to her, the petitioner submits an affidavit dated September 4, 2007 from Saul Tawil, a principal of 952 Associates, LLC. He states that confidentiality of the Stipulation is of "paramount importance" to petitioner since "we feel that our pending case against Ms. Kelleher, which alleges an ongoing Collier condition, is very strong...." Mr. Tawil asserts that by filing the instant motion the respondent breached the confidentiality provision of the Stipulation. He claims that the respondent has been in constant contact with Ms. Kelleher and "was observed in long [sic] conversation with Ms. Kelleher, which ended in an embrace." He states that petitioner has been in negotiations for the potential sale of the building, but that the building has not "changed hands." Mr. Tawil asserts that after the respondent vacated Ms. Kelleher's "demands became completely outlandish...." He claims that by divulging confidential information to Ms. Kelleher the respondent caused "enormous potential financial loss" to petitioner, and therefore petitioner seeks an order directing the respondent to disgorge the settlement funds paid to her.

In reply to the cross-motion and in further support of the motion the respondent submits an affidavit stating that Mr. Tawil's claim that as of September 4, 2007 the petitioner had an ongoing "Collyers" case against Ms. Kelleher, is belied by the fact that by that date Ms. Kelleher had already agreed to vacate her apartment by September 6, 2007, a mere two days later. The respondent denies being in constant contact with Ms. Kelleher or discussing the terms of her departure from the building. She states that as the two remaining tenants of the building from 2006, she and Ms. Kelleher were in regular contact due to the conditions in the building. The respondent states that on August 10, 2007 Ms. Kelleher informed her that she had entered into an agreement to vacate her apartment by September 6, 2007 for a substantial sum of money; she timely vacated and confirmed receipt of the money.

In reply the petitioner submits an affirmation from counsel stating "there is no agreement between the Petitioner and Ms. Kelleher to pay her money for her vacatur. The subject premises were sold to a third party, MUS 1, LLC, after Respondent brought her motion. That purchaser negotiated with the remaining tenant, Ms. Kelleher, and procured a vacancy." The petitioner annexes a copy of its Escrow and Indemnification Agreement with MUS 1, LLC. The agreement is dated September 12, 2007, and refers to a contract of sale dated July 23, 2007 and amendments dated August 2nd and 10th, 2007. Counsel for petitioner asserts that the Escrow agreement states the amount received by Ms. Kelleher, and provides that the difference between that amount and the amount paid to the respondent, to wit, $1,518,294.50, is to be held in escrow by the Purchaser's attorney pending a determination of respondent's claim. Counsel claims that this court lacks jurisdiction to grant relief to the respondent since the amount in controversy exceeds the jurisdictional limits of the court. In addition, counsel asserts that the money is being [*3]held by the attorney for the Purchaser who is not a party to the instant proceeding, and the court lacks equitable jurisdiction to order the release of the funds.

Further reply papers were submitted by both parties. The petitioner submits an affidavit from Mr. Tawil stating that petitioner never paid any money to Ms. Kelleher and did not enter into any agreement with her. He states that the potential purchaser "wanted to make its own deal with Ms. Kelleher before proceeding with the sale transaction. Petitioner had no control over the terms of that agreement." Mr. Tawil admits that an agreement exists but claims it is confidential and he is only authorized to disclose the amount of the payment. He asserts that the Stipulation with the respondent requires additional payment to her if the petitioner and Ms. Kelleher enter into an agreement, and claims that since petitioner did not enter into an agreement with Ms. Kelleher it has no further obligation to the respondent. In addition, petitioner submits an affirmation from counsel stating that petitioner has commenced a declaratory judgment action in Supreme Court seeking damages from the respondent based upon her divulging the confidential terms of the Stipulation as well as the return of money previously paid to her.

In her additional reply affidavit the respondent states again that she did not reveal the terms of the Stipulation to anyone. She asserts that since petitioner was the owner of the building during the period that Ms. Kelleher negotiated an agreement, vacated the premises, and received compensation, it must be a party to the Kelleher agreement directly or through a contract vendee. She seeks to enforce that part of the Stipulation that requires the petitioner to provide a copy of its agreement with Kelleher or "any other agreements or writing or documents related to any compensation received by Kelleher..." Counsel for respondent submits an affirmation acknowledging that respondent will have to proceed in Supreme Court with respect to any claim against the new owner of the building or the escrow agent, but states that respondent may proceed herein to enforce the terms of the Stipulation to the extent of seeking a copy of any agreement with Kelleher. Counsel states further that the Supreme Court declined to grant preliminary relief staying the instant proceeding; a motion for a stay is sub judice.

Petitioner's cross-motion seeking disgorgement of the funds paid to respondent is denied. The petitioner's claim that the respondent violated the confidentiality terms of the Stipulation by filing the motion is not persuasive. The respondent did not annex a copy of the Stipulation to the motion, nor does her affirmation in support divulge any material terms of the Stipulation. In fact, the letter annexed to the Discontinuance filed by the parties with the court contains more information about the Stipulation than anything stated by respondent in support of her motion. Mr. Tawil claims, without any proof, that respondent violated the agreement by divulging confidential information to Ms. Kelleher. The petitioner's allegations against the respondent are based on nothing more than speculation - seeing two long term neighbors embrace is not proof that confidential information was divulged. The Stipulation does not prohibit respondent from talking to Ms. Kelleher - it only prohibits her from divulging the terms of her agreement with petitioner and petitioner offers no proof that respondent violated the terms. In addition, the court notes that petitioner has commenced an action in Supreme Court in which it seeks this relief as well as additional declaratory relief and damages not available here.

The respondent's motion cannot be determined without a hearing and therefore the motion is granted to the extent of restoring this matter to the Part E calendar on February 7, 2008 at 3:00 p.m. A hearing is warranted in order to determine whether an agreement exists, the parties to the agreement, and the timing of the agreement. While counsel for petitioner claims that the building was sold after the respondent filed her motion and that it was the purchaser, and [*4]not the petitioner, who negotiated with Ms. Kelleher, the respondent states that Ms. Kelleher negotiated an agreement, vacated and received compensation prior to September 12, 2007, the date of the transfer of the property according to the deed. In addition, the Escrow and Indemnification Agreement refers to a contract of sale dated July 23, 2007 with amendments dated July 31, August 2 and August 10, 2007, all of which predate the respondent's filing of the instant motion. The parties stipulated that this court would retain jurisdiction of the matter and that the petitioner would provide the respondent with a copy of "any agreement or writing" with respect to Ms. Kelleher's vacatur and compensation. Accordingly, notwithstanding petitioner's action in Supreme Court for damages and a declaratory judgment, it is this court that must determine whether there is an agreement that petitioner is obligated to provide to the respondent.This is the decision and order of the Court copies of which are being mailed by the Court to the attorneys indicated below.

Dated:New York, New York

January 16, 2008———————————— ——————-Michelle D. Schreiber, J.H.C.