Recitation as required by CPLR 2219(a) of the papers considered in the review of the petitioner's motion to restore for a money judgment and attorney's fees.

Upon the foregoing cited papers, the Decision/Order of this Court on this motion is as [*2]follows:

This is a holdover proceeding originally made returnable on June 19, 2017 based on a rental agreement that expired on May 31, 2017. According to the petition, the subject premises was unregulated based on a monthly legal rent in excess of $2,700. The parties were both represented by counsel. Ultimately, the matter was settled pursuant to a two attorney stipulation ('the stipulation") so ordered by this court on December 1, 2017. The terms of the stipulation included a final judgment of possession against respondents and a separate money judgment in the amount of $82,800. The money judgment represented 50% of the monthly use and occupancy ^[FN1] for March 2017 through February 2018. It was understood that respondents were paying use and occupancy through February 2018. Specifically, petitioner agreed to accept a 50% discount in use and occupancy for the period March 2017 through February 2018 in the monthly amount of $6,900. This discount pursuant to the terms of the stipulation was subject to respondents vacating by February 28, 2018. However, respondents had the option to seek extensions to vacate no later than April 30, 2018 so long as the $6, 900 monthly use and occupancy was paid for March and April 2018.

Here, respondents, per the terms of the stipulation, twice exercised their option to extend their vacate dates with a final extension to April 30, 2018. Then, on April 27, 2018 respondents moved by order to show cause to further extend their time to vacate to June 30, 2018. The basis for the extension was due to an unforeseeable delay in construction of their new home. Respondents needed the time to vacate with their infant child. On May 3, 2018, Judge Daniele Chinea denied the respondents' order to show cause citing no basis to stay execution of the warrant of eviction, under the circumstances. Judge Chinea's decision made reference to the two attorney stipulation between the parties and indicated that respondents received the benefit of the bargain. She stated that April 30, 2018 was a "clear drop dead date." Moreover, Judge Chinea mentioned in her decision that she was not convinced respondents' family would become homeless by denying the motion. She indicated that denial of the motion would be more prejudicial to petitioner than denying it to respondents. However, since there was an infant child involved, Judge Chinea stayed execution of the warrant ten (10) days to allow respondents to vacate with dignity.

Now, petitioner moves to restore the matter for a money judgment in the amount of $110,400 and setting the matter down for an attorney's fees hearing. It is petitioner's position that respondents breached a material condition of the stipulation by failing to surrender possession of the premises by the extended vacate date of April 30, 2018. Therefore, it contends that it is entitled to the full $13, 800 monthly use and occupancy for the entire month of May 2018 plus March 2017 through April 30, 2018 for a total of $207,000 minus $96,600 paid, leaving a balance of $110,400.

First, respondents in opposition argue that they substantially complied with the terms and conditions of the stipulation by paying $25,000 simultaneously upon executing the stipulation, [*3]paying $32,800 by January 15, 2018, timely exercising their extension option to remain in the subject premises through April 30, 2018 and timely paying a total of $13,800 for the March and April 2018 discounted use and occupancy. Second, respondents argue that the court has the discretion to decline strict enforcement of a stipulation where the delay in surrendering is de minimus, enforcement would be unconscionable and no prejudice to petitioner can be shown. Specifically, respondents claim that an eight day delay in surrendering legal possession of the premises is de minimus and that they presented an excusable delay.

Petitioner in reply argues that the plain language of the stipulation indicates in paragraph four:

...In the event Respondents fail to timely vacate and surrender on or before the applicable Extended Vacate Date, there shall be no waiver of the balance of use and occupancy due, and the warrant may execute. Time is of the essence as to Respondents' obligation to vacate and surrender possession of the subject apartment on any applicable Extended Vacate Date.

...Petitioner is agreeing to accept rent and use occupancy for the period March 2017 through February 2018 at a 50% discount, subject to Respondents vacating and surrendering possession on the Vacate Date or the Extended Vacate Date....

At oral argument of the instant motion, respondents in their opposition urged this court to consider the holding in Goldburd v Langer, 62 Misc 3d 140 (A) ( AT 2nd Dep't 2019)^[FN2] for their contention that this court has no jurisdiction to enter a monetary judgment against them, since the proceeding is terminated. The court in Goldburd v Langer, supra., held that following the entry of a final judgment of possession and tenant's untimely vacatur, the holdover proceeding had terminated and was no longer pending. The reasoning was that Civil Court lacked jurisdiction to entertain the landlord's motion to amend the final judgment to include a monetary judgment for conditionally waived use and occupancy. This court notes that the same appellate term in Cumberbatch v Burnham, 55 Misc 3d 132(A) (AT 2nd Dep't 2017) affirmed the same trial court Judge's (Judge Bruce Scheckowitz) award of a money judgment for waived use and occupancy to a landlord, after the tenant failed to timely vacate pursuant to a final judgment of possession stipulation.

Stipulations of settlement are judicially favored and will not be set aside lightly. Hallock v State of New York, 64 NY2d 224 (1984); Matter of Frutiger, 29 NY2d 143 (1971). While stipulations of settlement may be vacated on grounds sufficient to set aside a contract, such as fraud, mistake, collusion or accident, a party should not be relieved from the consequences of a stipulation, particularly one which has been so-ordered by the court, absent a sufficient or [*4]compelling showing based on any one of the above grounds. Here, respondents, who were represented by counsel stipulated that, upon a default under the stipulation, the landlord would be entitled to a money judgment for the partially waived use and occupancy. Under these factual circumstances, respondents have failed to demonstrate sufficient grounds to set aside the stipulation and should not be relieved from the consequences of the stipulation. Hallock v State of New York, supra.; Matter of Frutiger, supra.

Moreover, the parties' stipulation of settlement is clear and literal enforcement of its terms is not unjust under the circumstances. 580 Park Ave., Inc. v. Mirto, 64 Misc 3d 133(A)(AT 1st Dep't 2019); (see also Taboola, Inc. v Newsweek Media Group, Inc., 171 AD3d 510 (1st Dep't 2019); Mill Rock Plaza Assoc. v Lively, 224 AD2d 301 (1st Dep't 1996). Here, the respondents clearly violated paragraph four of the stipulation by failing to vacate by April 30, 2018 which required a time of the essence performance. The literal enforcement of the terms of the stipulation of settlement is not unjust or unconscionable in this case, where the agreement was negotiated by sophisticated parties, all of whom were represented by counsel, and the default was neither de minimus nor trivial (see McKenzie v Vintage Hallmark, 302 AD2d 503 (2nd Dep't 2003); see also 1029 Sixth v Riniv Corp., 9 AD3d 142 (1st Dep't 2004), appeal dismissed 4 NY3d 795 (2005). The breach of the stipulation was not de minimus or trivial inasmuch as respondents' timely vacatur was material to the partial waiver of the use and occupancy. SMD Capital Group LLC v EPR Capital LLC, 45 AD3d 314 (1st Dep't 2007). Actually, Judge Chinea's denial in her May 3, 2018 decision made reference to the two attorney stipulation where the respondents received the benefit of the "clear drop dead date," that she was not convinced respondents' family would become homeless by denying the motion and that denial of the motion was more prejudicial to petitioner. Therefore, petitioner is entitled to move to enforce the terms of the stipulation by seeking entry of a money judgment pursuant to the plain and literal terms of paragraph three and other relevant provisions of the stipulation. 580 Park Ave., Inc. v. Mirto, supra.;Taboola, Inc. v Newsweek Media Group, Inc. supra.

Additionally, a stipulation entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement. If there is no such termination, the court retains its supervisory power over the action and may lend aid to a party who has moved for enforcement of the stipulation. Teitelbaum Holdings, Ltd. v. Gold, 48 NY2d 51 (1979). The enforcement may be sought by motion or a plenary action. Courts favor enforcement by motion as less burdensome on the parties and the court; it provides easier enforcement access for the litigants and at the same time conserves the court's "...increasingly precious judicial resources." Id.

However, there is an exception to the enforcement by motion and in favor of a plenary action, if the stipulation relates to an action which has been previously terminated. Yonkers Fur Dressing Co. v Royal Ins. Co, 247 NY 435 (1928). The practical rationale for this is that litigation in a lawsuit should ultimately come to an end. This court finds that litigation in this matter was not previously terminated for two reasons. First, there is no express stipulation of discontinuance between the parties. Second, there is no actual entry of judgment for breach of the stipulation. Actually, petitioner is now seeking by the instant motion the entry of a money judgment in accordance with the terms of the breached stipulation. This method reduces time and conserves resources for all those (i.e. the parties and the court) involved.

Also, contrary to respondents' argument, this court retains jurisdiction over its so ordered stipulations even after a judgment has been entered. The Housing Part of Civil Court has the same subject matter jurisdiction to compel compliance with its "so-ordered" stipulation (see CPLR 5221 (a) (3); NY City Civ Ct Act § 1508) as would the Supreme Court (see NY City Civ Ct Act § 212). Once such jurisdiction is established, Civil Court is able to hear related matters, such as petitioner's motion for a money judgment pursuant to its adjunct power under NY City Civ Ct Act § 212. 952 Associates, LLC v Palmer, 52 AD3d 236 (1st Dep't 2008).

Accordingly, for all the above discussed reasons, petitioner's motion to restore the matter and seek enforcement by this court of the stipulation is appropriate. Petitioner is awarded a money judgment in the amount of $102,387.08 representing all use and occupancy from March 1, 2017 through May 13, 2018.

Petitioner moves for legal fees pursuant to the terms of the stipulation. Under paragraph fifteen of the stipulation,

Each party shall bear their/its own legal fees related to this proceeding. Notwithstanding the foregoing sentence, in the event any party defaults under the terms of this stipulation and proceedings are had in this or any court for the enforcement of the terms of this stipulation, the prevailing party in such proceedings shall be entitled to reimbursement from the other party or parties for the reasonable cost of her/its attorney's fees for such proceedings to enforce this stipulation...

Here, respondents defaulted under the terms of the stipulation. As a result of such default, petitioner had to restore the matter to this court for enforcement. Petitioner is the prevailing party as it obtained a final judgment of possession ^[FN3] and prevailed on the May 3, 2018 order to show cause before Judge Chinea. Accordingly, petitioner's motion for attorney's fees is granted.

ORDERED the petitioner's motion for a money judgment in use and occupancy is granted. The Clerk is to enter a money judgment for $102,387.08 in favor of petitioner and against respondents.

ORDERED that petitioner's motion for attorney's fees is granted to the extent that the matter is set down for an attorney's fees hearing on August 2, 2019 at 2:15 p.m., Part F, Room 830.

This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below.