Appeal from orders of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated, respectively, March 16, 2012 and May 1, 2012. The order dated March 16, 2012 denied occupants' motion to, in effect, vacate a stipulation of settlement and the final judgment entered pursuant thereto in this holdover summary proceeding or, in the alternative, to stay the proceeding pending the determination of a Supreme Court action. The order dated May 1, 2012, insofar as appealed from, upon, in effect, granting occupants leave to reargue or renew the branch of their prior motion seeking to vacate the stipulation and the final judgment entered pursuant thereto, adhered to the prior determination.

ORDERED that so much of the appeal as is from the portion of the order dated March 16, 2012 that denied the branch of occupants' motion seeking, in effect, to
vacate the stipulation of settlement and the final judgment entered pursuant thereto is dismissed, as that portion of the order was superseded by the order dated May 1, 2012; and it is further,

ORDERED that the order dated March 16, 2012, insofar as reviewed, is reversed, without costs, and the branch of occupants' motion seeking to stay the holdover summary proceeding pending the determination of the Supreme Court action is granted; and it is further,

ORDERED that the order dated May 1, 2012, insofar as appealed from, is modified by providing that the denial of occupants' motion to set aside the stipulation of settlement and the final judgment entered pursuant thereto is without prejudice to the renewal of the motion following the determination of the Supreme Court action; as so modified, the order dated May 1, 2012, insofar as appealed from, is affirmed, without costs.

Petitioner and David G. Wolfe (since deceased) commenced this holdover proceeding in October 2011 to remove occupants, who, they allege, are tenants at sufferance in the subject one-family house. The house formerly belonged to Deborah Wolfe, who was the mother of occupant Jennifer Anne Vargas and of petitioner Vincent J. Lanuto, Jr., and the wife of David G. Wolfe. Jennifer Anne Vargas has resided in the house rent free for 16 years, and her husband, occupant [*2]David Vargas, has resided in the house with her since his marriage to her. Their two infant children also reside with them. Deborah Wolfe died on October 30, 2010. Occupants allege that, over the years, Mrs. Wolfe had made it known that she had a will; that the will was in the possession of David G. Wolfe; and that her entire family would share equally in her estate. Occupants further allege that, following her admission to the hospital with kidney failure as a result of end-stage liver cancer, Mrs. Wolfe, as a result of undue influence by petitioner and David G. Wolfe, purportedly transferred her two real properties to petitioner and David G. Wolfe as joint tenants days prior to her death. Petitioner failed to dispute any of these allegations.

Occupants failed to appear on the October 31, 2011 return date of the petition, and the matter was adjourned to November 22, 2011 for inquest. They appeared on the adjourned date, explained the reasons for their failure to appear on the return date, and requested an adjournment to obtain counsel. The matter was adjourned for traverse and trial to January 3, 2012. Occupants claim that, because of their limited financial resources, they were unable to retain counsel until December 28, 2011. They appeared with counsel on January 3, 2012, and counsel requested an adjournment to investigate the matter. The request was denied, as the matter had been marked final. Allegedly as a result of counsel's lack of preparation for trial, occupants entered into a stipulation in which they agreed to vacate the house by April 3, 2012, and a final judgment was entered awarding possession to petitioner and David G. Wolfe. After investigating the matter, occupants' counsel moved to, in effect, vacate the stipulation and final judgment or, in the alternative, for a stay pending the determination of a Supreme Court action that he had commenced on behalf of occupants seeking to set aside the transfer of the property. The Civil Court denied the motion, and, upon, in effect, granting so much of occupants' subsequent motion as sought leave to reargue or renew the branch of their prior motion seeking to set aside the stipulation and final judgment, again denied that branch of the prior motion. Occupants' appeal from the Civil Court's order was held in abeyance following the death of David G. Wolfe. By decision and order of this court dated January 16, 2014, a motion by Vincent J. Lanuto, Jr., to amend the caption to reflect that Vincent J. Lanuto, Jr., is the sole petitioner was granted, as Lanuto established that he had succeeded to David G. Wolfe's interest in the subject house.

In view of the allegations set forth in the Supreme Court action to set aside the transfer of the subject house—the resolution of which will likely be determinative of the instant proceeding—and as full redress upon this claim cannot be had in the Civil Court, the court should have granted occupants' request for a stay (see Capolino v Bua, 63 AD3d 1092 [2009] Amoo v Eastlake Realty Co., 133 AD2d 657 [1987]), and the branch of occupants' motion seeking to set aside the stipulation and final judgment should have been denied without prejudice to renewal following the determination of that action.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: April 07, 2014