The following named papers numbered 1 to 3

submitted on this July 12, 2011

on Motion

papers numbered

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

Opposition to Motion2

Reply Papers to Motion3

Respondent moves by way of Order to Show Cause for an order, pursuant to CPLR § 5015, vacating the default judgment and warrant entered against Respondent on April 21, 2011. Petitioner opposes the motion and Respondent replies.

This is a commercial case involving a car wash and gas station purchased by respondent from petitioner and in connection therewith assumed the Lease dated November 11, 2004 and also assumed all obligations under a $700,000 promissory note dated November 11, 2004. Respondent allegedly made all payments under the promissory note until it stopped making payments in July 2010; respondent made all monthly rent payments until October 2010, when it stopped making rent payments. A Holdover Proceeding was subsequently instituted, returnable in this Court on January 11, 2011. The proceeding was ultimately settled by a "So Ordered" stipulation entered into between the parties, negotiated with their attorneys on March 11, 2011, wherein respondent agreed to make payments to petitioner at a schedule set forth therein. It was agreed that petitioner was entitled, under the stipulation, to the granting of a [*2]warrant of eviction and a monetary judgment in the sum of $109,183.58, less credit for any payments made thereunder, which judgment could be entered upon ten days notice to respondent and an affidavit of default from the petitioner or its counsel. Respondent defaulted in making a $30,000.00 payment due April 29, 2011 and $37,597.58 by May 16, 2011, leaving a balance owing to petitioner of $92,965.98 for which petitioner obtained a judgment. Respondent does not allege any defect in notice. Petitioner's President states in his opposition affidavit that in addition, respondent has failed to make any rent, additional rent, taxes and default rate interest on accelerated note payments to date, which amount to an additional $51,663.31.

Respondent's President does not deny that he has been conducting business at the leased premises on a continuous basis since July 2010, and offers as the reason for not complying with the stipulation, that he has been unable to secure a loan to pay the amount due to petitioner, and has coupled this inability with set-backs with regard to his car wash business due to rainy weather and his gasoline sales due to an accident with one of his gasoline pumps.

While petitioner cites 144 Woodruff Corp. v. Lacrete, 154 Misc 2d 301 (1992) "relief from a stipulation to be granted in order to prevent injustice upon showing good cause", it is noted that the cited case deals with stipulations which were entered into by a pro se respondent who lacked basic knowledge of her legal rights and, in particular, did not know at the time of signing the stipulations that they called for payment of rent in a monthly amount over two times greater than the legal regulated rent for her rent-stabilized apartment. Such is not the case here. In the instant case, both parties were represented by attorneys, who meticulously worked out a six-page stipulation agreement. There is no allegation or evidence of fraud, overreaching, unconscionability or illegality. Appellate court decision (Chelsea 19 Associates v. James, 67 AD3d 601 [App Div 1st Dept.,2009]) illustrates a basic principle that courts have applied to stipulations of settlement to promote their use, i.e. that they need to be accorded finality and not easily avoided once entered into. As stated in Chelsea 19 Associates v. James, supra:

Enforcement of stipulations of settlement, including those in housing court cases, is highly favored by the courts ( see Hotel Cameron, Inc. v. Purcell, 35 AD3d 153, 155, 827 N.Y.S.2d 13 [2006], citing, inter alia, 566 Hallock v. State of New York, 64 NY2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). While the court has discretion not to enforce a stipulation of settlement "where there is evidence of fraud, overreaching, unconscionability, or illegality" ( see id. at 156, 827 N.Y.S.2d 13), tenant's claimed difficulty in obtaining funds does not fall under that rubric. Accordingly, tenant does not show a meritorious defense to the stipulation, his loss of possession is not a forfeiture but "merely the contracted-for consequence" of his noncompliance with the stipulation ( id. at 155—156, 827 N.Y.S.2d 13 [internal quotation marks omitted] ), and [*3]Civil Court lacked the discretion not to enforce the stipulation ( see City of New York v. 130/40 Essex St. Dev. Corp., 302 AD2d 292, 294, 756 N.Y.S.2d 23 [2003].

There is no basis to vacate this judgment.

Accordingly, Respondent's motion is denied and all stays herein are vacated.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 25, 2011

cc:D'Agostino, Levine, Landesman & Lederman, LLP, Attorneys for Petitioner

Ezratty, Ezratty & Levine, Attorneys for Respondent

SF/mp