The following named papers numbered 1 to 3

submitted on this Motion

on February 1, 2011

papers numbered

Notice of Motion and Supporting DocumentsOrder to Show Cause and Supporting Documents1

Opposition to Motion2

Reply Papers to Motion3

Respondent moves to restore the case to calendar and stay execution of the warrant of eviction.

This proceeding began when Petitioner filed a notice of petition and petition on July 28, 2010, addressed before this Court on August 6, 2010. On August 31, 2010 the parties entered into a written stipulation of settlement. The settlement outlined a reasonable schedule of payment to be strictly adhered to by the Respondent to satisfy outstanding debts to the Petitioner. The arrears due were to be paid in six (6) equal monthly payments commencing October 20, 2010. The Respondent violated the stipulation of settlement by failing to make the first payment. Respondent claims that he is unable to abide by the agreed-upon payment schedule due to a levy imposed on his bank account on September 29, 2010 by the IRS. In addition, the Respondent also alleges in the affidavit in support of motion that the majority of his funds from the business are credit card payments that are automatically deposited into the frozen account, thus resulting [*2]in his inability to pay the past and present rent that is due.

The signed stipulation of settlement, in addition to providing a payment schedule, clearly states:

If the Respondent/Tenant shall fail to make any of said (6) arrears payments within (5) days of due date, or any of its regular monthly base rent or additional rent payments when due under the parties lease agreement during the said arrears repayment period, then the Petitioner/Landlord shall be entitled to a money judgment in a sum equal to the then total remaining unpaid rent arrears payments, a judgment of possession of the above referenced subject premises and a warrant of eviction, all upon submission of a (5) day notice of default to respondents attorney by fax at without further notice to Respondent/Tenant or delay, upon submission of a sworn affidavit by Petitioner/Landlord to the Court confirming such a default in payment

On October 20, 2010, Respondent failed to make an arrears payment, monthly payment and additional rent. Petitioner responded to the failure of the Respondent to abide by the agreement by submitting an affidavit of default, proposed judgment, and warrant of eviction on October 29, 2010. This Court issued a warrant of eviction on November 24, 2010. Petitioner sent the warrant of eviction and all necessary documentation to the Nassau County Sheriff's Department on December 1, 2010. A 72-hour notice was issued on December 13, 2010. On the day before the eviction the Respondent submitted an order to show cause to this Court and was granted a temporary stay of eviction.

The affirmation in opposition to the Respondent's motion submitted by Petitioner notes that although it would provide a financial hardship for the Respondent to vacate the premises, it is unfair to allow Respondent to continue operating a business without paying rent. In addition, Petitioner is being denied the opportunity to rent to a paying tenant.

The Court agrees with the Petitioner that the Respondent has been provided with ample time and opportunity to satisfy its debts. The stipulation was clearly breached by Respondent. In Hallock v. State of New York, 64 NY2d 224, 474 NE2d 1178, 485 NYS2d 510 (1984), the Court held:

Stipulations of settlement are favored by the courts and not lightly cast aside (see Matter of Galasso, 35 NY2d 319, 321, 361 NYS2d 871, 320 N.E.2d 618). This is all the more so in the case of "open court" stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1, 10, 334 N.Y.S.2d 833, 286 N.E.2d 228) within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Matter of Frutiger, 29 NY2d 143, 149-150, 324 N.Y.S.2d 36, 272 N.E.2d 543). [*3]

No reason has been demonstrated by Respondent to delay Respondent's eviction.

Petitioner may immediately evict the Respondent and no additional 72 hour notice is required.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:March 3, 2011