Fairfield Presidential Assoc. v Caldwell (2009 NY Slip Op 50231(U))

Fairfield Presidential Assoc. v Caldwell

2009 NY Slip Op 50231(U) [22 Misc 3d 133(A)]

Decided on February 11, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 23, 2009; it will not be published in the printed Official Reports.

Fairfield Presidential Assoc., Respondent,

against

Ken Caldwell, Appellant, -and- LISA CALDWELL a/k/a LISA M. NABRITT, Defendant.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), dated June 4, 2007, deemed from a judgment of said court entered September 14, 2007 (see CPLR 5520 [c]). The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $11,462.93 as against defendant Ken Caldwell, and implicitly dismissed his counterclaims.

Plaintiff commenced this action to recover use and occupancy for the months of January 2002 through November 2002, at a monthly rate of $1,138, plus a balance of $986.18 for December 2001. Defendant Ken Caldwell (appellant) counterclaimed for, among other things, "a rent abatement." At trial, plaintiff proved that appellant had agreed, in two so-ordered stipulations dated May 14, 2002, in different proceedings, to pay use and occupancy at the level of $1,138 per month for the months sought, and had further agreed to waive and release all his claims against plaintiff. The court's award in favor of plaintiff of the principal sum of $11,462.93 was based on the $1,138 per month level of use and occupancy set forth in the stipulations. On appeal, appellant takes issue with the amount awarded plaintiff.

The court's award was properly based on the two so-ordered stipulations. We note that a previous motion by appellant to vacate the stipulations was denied by order dated September 23, [*2]2002. While appellant filed a notice of appeal from said order, he failed to perfect the appeal, and his appeal was dismissed. We further note that, in any event, appellant has set forth no basis to invalidate either of the two stipulations (see e.g. Hallock v State of New York, 64 NY2d 224 [1984]; Matter of Frutiger, 29 NY2d 143 [1971]). Therefore, there is no basis to disturb the judgment which was based on those stipulations. Appellant's remaining arguments are meritless.