Appeal from an order of the Justice Court of the Town of Rye, Westchester County (Anthony M. Provenzano, J.), entered June 30, 2009. The order, insofar as appealed from, denied the branches of tenant's motion seeking, in effect, to vacate a stipulation of settlement and a warrant.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branches of tenant's motion seeking, in effect, to vacate the stipulation of settlement and warrant are granted.

In this nonpayment proceeding, tenant appeared pro se and entered into a stipulation of settlement on the record which provided, among other things, for tenant to
make installment payments totalling $2,400 to satisfy agreed-upon arrears of $2,250, in addition to paying current rent. Although tenant timely made the current rent payments and one of the installment payments, she failed to make several of the other installment payments, and landlord obtained a final judgment, which included awards of $3,642 in rent arrears and $552 in legal fees, and a warrant. Thereafter, tenant moved to vacate the final judgment and warrant and, in effect, the stipulation of settlement. She asserted, among other things, that the stipulated amounts were incorrect; that the arrears improperly included $352.22 in damages for a window; that the judgment's award of arrears of $3,642 was incorrect and the award of legal fees improper; and that, while she may have missed two installment payments, she was willing to make them. The Justice Court granted tenant's motion to the extent of vacating the judgment and directed landlord to submit an amended judgment, but otherwise denied tenant's motion, leaving the warrant intact. No amended judgment was thereafter entered. Tenant appeals from so much of the order as denied the branches of her motion seeking, in effect, vacatur of the warrant and of the stipulation of settlement.

In our view, the stipulation, which provided for tenant to make arrears payments in excess of the amount due, should have been vacated (see e.g. Third F.G.P. v Babalola, NYLJ, Apr. 28, [*2]1992 [App Term, 2d & 11th Jud Dists]). In addition, the warrant lapsed in the absence of a final judgment and should not have been left undisturbed (e.g. Kensico Assoc., LLC. v Bennett, 2002 NY Slip Op 40375[U] [App Term, 9th & 10th Jud Dists 2002]; Greenberg v Cagle, 212 NYS2d 767 [1961]). We note, in any event, that the stipulation did not provide for an award of attorney's fees, but only for an award of "the remaining sum due," and it was error to include an award of attorney's fees in the judgment. Accordingly, the order, insofar as appealed from, is reversed and the branches of tenant's motion seeking, in effect, to vacate the stipulation of settlement and the warrant are granted.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: June 18, 2010