141-05 Pershing Realty Corp. v Arkin (2013 NY Slip Op 51271(U))

141-05 Pershing Realty Corp. v Arkin

2013 NY Slip Op 51271(U) [40 Misc 3d 135(A)]

Decided on July 31, 2013

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

141-05 Pershing Realty Corp., Respondent, —

against

Mendel Arkin, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 9, 2012. The order, insofar as appealed from as limited by the brief, denied the branch of tenant's motion seeking, in effect, to vacate a stipulation of settlement in which tenant had agreed to pay landlord $2,000 and to direct landlord to return the $2,000 that tenant had paid landlord pursuant to the stipulation of settlement.

In this nonpayment proceeding, tenant stipulated to pay landlord $2,000 in settlement of the proceeding. Although the $2,000 is not described as such in the stipulation, both parties agree that this sum represented a settlement of landlord's claim for the attorney's fees that landlord had incurred in bringing a prior illegal-sublet holdover proceeding against tenant. [*2]

In the prior holdover proceeding, landlord was awarded a final judgment for possession and rent arrears of $5,995.80. After paying the arrears, tenant, claiming to have cured the illegal sublet, moved, in the holdover proceeding, for relief from the warrant. The Civil Court granted tenant's unopposed motion but, in addition to vacating the warrant, without any basis therefor, vacated the holdover final judgment as well. Upon learning that the Civil Court had vacated the holdover final judgment, tenant moved, in effect, to, among other things, vacate the stipulation in this nonpayment proceeding and to direct landlord to return the $2,000 that tenant had paid pursuant to the stipulation, arguing that the vacatur of the holdover final judgment required the vacatur of the attorney's fees' award, which had been based on that final judgment.

In our view, tenant failed to show good cause for the vacatur of the stipulation. Landlord substantially prevailed on the central issues litigated in the holdover proceeding, and the Civil Court's erroneous vacatur of the holdover final judgment does not provide a proper basis for vacating the stipulation entered into in settlement of landlord's claim for the legal fees it had incurred in maintaining that proceeding (see 1974-76 Lafontaine Ave. Terrace Corp. v Rogers, 29 Misc 3d 137[A], 2010 NY Slip Op 52026[U] [App Term, 1st Dept 2010]). Accordingly, the order, insofar as appealed from, is affirmed.