Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), dated October 7, 2011. The order, insofar as appealed from, (1) denied the branch of landlord's motion seeking to vacate a conditional stay of the warrant, (2) upon granting the branch of landlord's motion seeking attorney's fees, awarded landlord only $400 in attorney's fees, and (3) granted tenants' cross motion to extend the stay of the warrant, in a chronic-nonpayment holdover summary proceeding. So much of the appeal as is from the portion of the order which, upon granting the branch of landlord's motion seeking attorney's fees, awarded landlord only $400 in attorney's fees is deemed to be an appeal from a judgment of the same court entered October 7, 2011, awarding landlord the principal sum of $400 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order dated October 7, 2011 as, upon granting the branch of landlord's motion seeking attorney's fees, awarded landlord $400 in attorney's fees is vacated, and the matter is remitted to the Civil Court for a hearing to determine the amount of attorney's fees landlord is entitled to recover; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is reversed, without costs, the branch of landlord's motion seeking to vacate the conditional stay is granted and tenants' cross motion to extend the stay is denied.

In this chronic-nonpayment holdover proceeding, the parties entered into a stipulation of settlement pursuant to which a final judgment of possession was to be entered and a warrant of eviction issued, with execution of the warrant stayed through January 30, 2010, provided tenants complied with the terms of the stipulation, which imposed a probationary period from January 18, 2008 through January 30, 2010. Pursuant to the stipulation, tenants would pay any attorney's fees incurred by landlord in proving a breach of the stipulation and recovering possession. Following a default by tenants, the parties entered into a new stipulation, which created a new probationary period, from February 1, 2010 to February 28, 2012, retained the attorney's fee provision, and stated that landlord would be entitled to seek tenants' eviction from the subject apartment upon any violation of the stipulation.

Thereafter, landlord moved to, among other things, vacate the conditional stay of the [*2]execution of the warrant, and for an order directing tenants to pay attorney's fees due pursuant to the terms of the stipulation, alleging that tenants had breached the stipulation in March 2010 and again in May 2010. Landlord alleged that, at that time, it had incurred $6,500 in attorney's fees in order to prove the breach of the stipulation. Tenants cross-moved for an extension of the stay. After finding that it was undisputed that tenants had breached the stipulation, the Civil Court denied the branch of landlord's motion seeking to vacate the conditional stay, awarded $400 to landlord for "costs and fees associated with this motion," stating that "[c]ontrary to petitioner's attorney's position argued in court, the issue of attorney's fees for the balance of this proceeding has been settled by the two agreements," and granted tenants' cross motion "to the extent of extending the stay of eviction per the terms of the two agreements between the parties."

Settlement stipulations are favored and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see e.g. Hallock v State of New York, 64 NY2d 224 [1984] Matter of Frutiger, 29 NY2d 143 [1971]). Nevertheless, enforcement of a stipulation remains subject to the supervision of the court (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]), which is not necessarily bound by language in the stipulation stating that no breach shall be deemed de minimis, and which "always retains the power to vacate a warrant of eviction prior to its execution for good cause shown' " (Harvey 1390 LLC v Bodenheim, 96 AD3d 664, 664 [2012], quoting RPAPL 749 [3]). However, as the breach here was substantial, we find no basis not to enforce the second stipulation. After entering into the second stipulation, tenants failed to pay a portion of the money due in March 2010 and then tendered May rent in the form of a personal check, in violation of that stipulation. That check was returned for insufficient funds. It was not until July 2010, after landlord had brought its motion to, among other things, vacate the conditional stay, that tenants replaced the May 2010 check, and they did not make the missing March 2010 payment until August 2010. They also failed to pay rent for July 2010 by the deadline set forth in the stipulation. Tenants' defaults went to the heart of the proceeding and settlement, and the court should have refused to excuse them (see Chelsea 19 Assoc. v James, 67 AD3d 601, 602 [2009] Hotel Cameron, Inc. v Purcell, 35 AD3d 153, 155 [2006] 175 E. Parkway Assoc. v Baptiste, 31 Misc 3d 138[A], 2011 NY Slip Op 50767[U] [App Term, 2d, 11th & 13th Jud Dists 2011] M & B Lincoln Realty Corp. v Lubrun, 4 Misc 3d 129[A], 2004 NY Slip Op 50668[U] [App Term, 2d & 11th Jud Dists 2004]).

The Civil Court also erred in awarding landlord an attorney's fee without conducting an evidentiary hearing. "Under the circumstances of this case, an evidentiary hearing was necessary to explore in a meaningful way the value and time of the claimed services of counsel" (Sheikh v Basheer, 34 AD3d 670, 670 [2006]).

Accordingly, the judgment is reversed, so much of the order dated October 7, 2011 as, upon granting the branch of landlord's motion seeking attorney's fees, awarded landlord $400 in attorney's fees is vacated and the matter is remitted to the Civil Court for a hearing to determine the value of attorney's fees landlord is entitled to recover. In addition, the order, insofar as reviewed on direct appeal, is reversed, the branch of landlord's motion seeking to vacate the conditional stay is granted, and tenants' cross motion is denied.

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014