This summary nonpayment proceeding was commenced by 1809-15 7TH AVENUE HDFC (Petitioner) against DENEEN TAYLOR (Respondent) the proprietary lessee of 1809-15 7TH Avenue, Apt. 5F,New York, New York 10026 (Subject Premises) based on the allegation that Respondent failed to pay rent/maintenance due for the Subject Premises.

There were two prior nonpayment proceeding between the parties. The most recent was under index Number 84316/2013, which commenced in October 2013. That proceeding was resolved by a stipulation dated May 29, 2014 and there was a subsequent order by the court on July 23, 2014, which resolved landlord's claim for all arrears through July 2014.

An earlier proceeding under Index Number 77530/2012 was initially returnable in September 2012 and addressed arrears claimed through that date.

Petitioner issued a rent demand dated December 5, 2014, seeking $4,512.32 in arrears, at a rate of $945.08 per month. The breakdown annexed to the rent demand goes back to 2012 and includes thousands of dollars in legal fees and late fees. The petition is dated December 24, 2014.

Respondent appeared pro se on January 2, 2015, and filed an answer asserting that part of the rent demanded had been paid and disputing the amount Petitioner was suing for. The proceeding was initially returnable on January 12, 2015, and was adjourned to February 19, 2015 with a direction for Respondent to file an amended answer by February 5, 2015.

On February 19, 2015, the parties had a conference with the court (Kraus, J) and Respondent's answer was amended to include a request for repairs and breach of warranty of habitability. The court further directed that the proceeding be transferred to the Coop Part and set a trial date for March 25, 2015.

The proceeding was not transferred to the coop part, and on April 29, 2015 the parties entered a stipulation of settlement that was so-ordered by the court (Saxe, J). Pursuant to the stipulation, Respondent consented to a judgment in the amount of $7821.52, along with forthwith issuance of the warrant. The judgment amount was asserted to be for $6721.54 in arrears and $1000.00 in legal fees. Execution of the warrant was stayed for Respondent to pay the $6721.54 by June 15, 2015, and $100 per month on top of her rent by the tenth of each month towards the attorneys' fees from May 2015 through March 2016.

The stipulation further provides:

LL acknowledges receipt from tenant in October 2014 the sum of $1046 by two Mos No. 22213035167 for $946.00 and # 22213035178 for $100, which LL claims was not negotiated. Tenant represents she requested a trace of both money orders but she has yet to receive requests. LL to credit Tenant against judgement amount said $1046 if trace indicates they were negotiated by LL.

The stipulation further acknowledges that Petitioner provided Respondent with a breakdown in court, but would additionally provide Respondent with an adjusted breakdown to "reflect the terms " of the stipulation on or before May 4, 2015.

There is no provision in the stipulation requiring Petitioner to make repairs.

The warrant of eviction issued on May 14, 2015.

On June 25, 2015, Respondent brought an order to show (OSC) cause seeking an extension of time. Respondent asserted that she had applied for a one shot deal, but her application was not approved because additional paperwork was required. Respondent stated her income was insufficient, and that she had paid the rent for May and June, as well as $200 towards attorneys' fees.

Respondent's OSC was granted by the court (Black, J) pursuant to an order which stayed execution of the warrant through July 31, 2015 for payment of $8544.27. The order further provided Respondent would be entitled to further credit upon proof of the results of the trace for the money order.

On August 12, 2015, Respondent brought a second order to show cause showing certified funds, dated August 3, 2015, totaling $4,400 and payable to Petitioner, as well as proof of an approval from HRA for assistance towards the arrears. The motion was granted by the court (Black, J) to the extent of staying execution of the warrant through August 31, 2015, for payment [*3]of $9489.30. The order denied Petitioner's application for additional attorneys' fees without prejudice, and noted that Respondent had applied for DRIE benefits and had a pending one shot deal application.

A third OSC was signed on Respondent's application on August 31, 2015. Respondent asserted that she had applied for assistance from Catholic Charities, and that additional financial assistance was pending. Respondent also stated she was an inpatient at St. Luke's Hospital, and that she was seeking more time to make the payments due. Annexed to Respondent's moving papers are: copies of a money orders for payments in June and August 2015 totaling $1026.00; proof of a pending applications with HRA and Catholic Charities; and documents supporting Respondent's statement that she was admitted as an inpatient at St Luke's Hospital for treatment for renal failure and had left the hospital only to make the OSC application in court. The motion was denied on the September 10, 2015, return date, based on Respondent's failure to appear.

Respondent's daughter, Shaian M. Taylor, moved for a fourth OSC, on behalf of Respondent, returnable September 21, 2015. She stated that Respondent remained hospitalized for treatment, and sought an extension of time for the payment of the arrears. When the court signed the OSC, the court noted that a possible referral to Adult Protective Services (APS) may be appropriate. On the return date, the motion was adjourned to October 19, 2015 for an APS determination. On October 19, 2015, the motion was granted by the court (Stoller, J) to the extent of staying execution of the warrant through October 30, 2015, for payment of $6,939.46 in arrears due through October 2015. The order noted that Respondent had failed to appear and that APS had closed her case. The order further noted it was without prejudice to Petitioner's claim for attorneys' fees.

On October 20, 2015, Respondent appeared and moved for a fifth OSC. Respondent stated she had failed to appear due to a mild heart attack and kidney failure, and that this had resulted in her being required to reapply for a one shot deal. Respondent requested an APS referral based on her medical condition, which she asserted had resulted in deteriorating eye sight and attached a note from a doctor stating Respondent had missed court because of gastroenteritis, and asking that the court make a referral to APS on behalf of Respondent.

The motion was returnable on October 29, 2015, both parties appeared and the motion was adjourned to November 5, 2015, when Petitioner filed a cross motion seeking " an additional possessory judgment for $3,230 in additional maintenance representing attorney's fees accrued by Petitioner in this matter since April 29, 2015". On November 5, 2015, the court (Black, J) granted Respondent's motion to the extent of staying execution through November 9, 2015, for payment of $1965.76 and then through November 24, 2015, for payment of $5956.59. The court noted the stay was granted in part due to Respondent's health issues and based on a pending application for assistance with DSS. The order makes no reference to the cross-motion. Petitioner acknowledges payment of $7922.35 in November 2015. Respondent thus satisfied the total payments required by Judge Black's order and was entitled to a zero balance and dismissal of the proceeding at that point.

On November 24, 2015, Respondent applied for her sixth OSC. Respondent stated DSS required an accurate rent breakdown in order to process Respondent's application, that she was able to pay November maintenance and that she still had not received the results of the money order trace from October 2014. The motion was returnable December 4, 2015. Petitioner cross-moved for the identical relief it had sought in November. The motions were adjourned to January 26, 2016 and resolved on that date by a stipulation between the parties that was so-[*4]ordered by the court (Black,J) .

The stipulation provided for the entry of a new judgment, thereby vacating the prior judgment and warrant. The new judgment was in the amount of $7857.76, $6000 of which was for attorneys' fees, and issuance of a warrant forthwith. Execution of the warrant was stayed for Respondent to pay $1857.76 by February 29, 2016 and for Respondent to pay $250 per month towards attorneys' fees starting March 25, 2016 and continuing through February 25, 2018.

The prior warrant was vacated with the prior judgment. No new warrant has been ordered or has issued, pursuant to the new judgment entered based on the January 26, 2016 stipulation.

Respondent now moves by her seventh OSC, seeking to vacate the January 26, 2016 stipulation. Respondent asserts that she should be credited for the disputed money order she was supposed to trace, because she had delivered it to Petitioner and is not responsible for the fact that the Petitioner lost the money order. Respondent also stated on the record that she would be severely prejudiced by the judgment of an additional $6000 in attorneys' fees because she is disabled and living on a fixed income. Moreover the terms of the stipulation would subject Respondent to eviction in this proceeding for failure to pay any future rent or maintenance that came due.

Petitioner opposes arguing there is no basis to vacate or modify the January 2016 stipulation.

Good cause to vacate a stipulation is demonstrated when it appears that a party has inadvertently or inadvisedly entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in doing so may work to that party's prejudice (BML Realty Group v Samuels 833 NYS2d 348).

Here Respondent's agreement to a new judgement and warrant after she timely satisfied the terms of Judge Black's November 5, 2015 decision and order continued the proceeding when the case should have ended based on the timely compliance with the court's last order. The $6000 of the judgment that was for legal fees, had been sought by Petitioner in an identical motion before Judge Black and no relief had been granted by the court. While Petitioner may be entitled to move to renew or reargue Judge Black's decision, they can not just bring the identical motion again.

Additionally, the initial stipulation of settlement in this proceeding settled Petitioner's claim for attorney's fees and the judgment entered pursuant to that stipulation included $1000.00 in attorneys' fees. There was no reservation in the initial stipulation for Petitioner to seek additional fees on default, therefore the claim to additional fees incurred in this proceeding was waived (Rosewohl Enterprises, LLC v Gluck 847 NYS2d 898; 167-169 Allen Street HDFC v Franklin 957 NYS2d 637). Additionally, Petitioner's own breakdown does not show $6000 in legal fees due as of January 2016, most of that appears to have first been billed to Respondent in March 2016.

Respondent who secured a one shot deal to pay the amount ordered by the court would be severely prejudiced and likely subject to eviction if the judgment and warrant pursuant to the January 2016 were to stand.

The proceeding is dismissed with prejudice as to all claims for rent and additional rent through November 2015.

For all of the foregoing reasons, Respondent's motion is granted, the January 2016 [*5]stipulation and judgment are vacated and the proceeding is dismissed based on Respondent's fully and timely compliance with Judge Black's November 2015 order.

This constitutes the decision and order of the Court.