Recitation, as required by CPLR § 2219(a):

NYSCEF DOC# 13-19; 34-4424-32

Motion & Affidavits Annexed 1,2

Notice of Cross-Motion & Affidavits Annexed 3

Answering Affidavits 4

Replying Affidavits 5

Exhibits 6

Memorandum of law 7

Petitioner commenced this holdover proceeding to recover possession of the premises located at 265 Marion Street, Apt 1L, Brooklyn, New York 11233 ("premises") based on the allegation that Tanisha Hall does not utilize the premises as her primary residence. ("Respondent" or "Hall"). Petitioner alleges that Hall is a deed owner of a property located at 150-30 116th Road, Jamaica, NY 11434, which Hall maintains as her primary residence, and that Hall allowed others to occupy the subject premises. The Petition is predicated on a "Combined Notice of Intention Not to Renew Lease Due to Non-Primary Residence and Notice of Termination."

This proceeding first appeared on the court's calendar on January 27, 2025, and was adjourned to March 13, 2025, for Respondent to participate in the Office of Civil Justice intake process to obtain legal counsel. On February 25, 2025, Build Up Justice NYC ("BUJ")SUP>[FN1] filed a Notice of Appearance, and on the return date of March 13, 2025, the parties by their respective counsel submitted a stipulation adjourning the proceeding to April 16, 2025 for Respondent to meet with counsel and file an answer. Respondent consented to the jurisdiction of this court and waived traverse.

On April 16, 2025, the parties submitted a two-attorney Stipulation of Settlement to the court ("Stipulation"). The Stipulation was So-Ordered by this court and uploaded to NYSCEF on April 17, 2025. In the Stipulation, Respondent Tanisha Hall acknowledged the allegations in the Notice to be true and correct, consented to a judgment of possession and agreed to surrender possession by May 30, 2025. The Stipulation was signed by Tanisha Hall and her attorney. The Stipulation also provided that the proceeding was adjourned to May 16, 2025, for inquest against non-appearing Respondents or trial if they appear. (See, NYSEF Doc. No. 9).

At this juncture there are three motions before the court. Respondent Tanisha Hall with [*2]newly substituted counsel, The Legal Aid Society ("LAS"), moves to vacate the April 16, 2025 Stipulation and to dismiss this proceeding for failure to state a cause of action. A John Doe, Omowale Hewitt, by counsel Mobilization for Justice Inc ("MFJ"), moves to dismiss this proceeding pursuant to CPLR§ 1024 alleging misuse of the pseudonym John Doe or in the alternative to interpose an answer. Petitioner cross-moves to amend the Petition to reflect the name of Respondent-Undertenant as Omowale Hewitt instead of John Doe. Petitioner also opposes Respondent Tanisha Hall's motion to vacate the Stipulation and Respondent Omowale Hewitt's motion to dismiss and/or to interpose an answer.

Respondent Tanisha Hall moves to vacate the two-attorney Stipulation of Settlement she signed with counsel while present in court, and to dismiss the proceeding alleging the notice is defective. In her affidavit in support, Hall admits that she is a co-owner and a mortgage co-signer for a property located at 150-30 116th Road, Jamaica, NY 11434. She alleges that she does not reside at that address but only co-signed the deed and mortgage for the property to help her daughter who needed a co-signer. She avers that she has been a rent stabilized tenant at the subject premises and continues to reside there with her partner Omowale Hewitt and his mother. She alleges that the BUJ attorney assigned to her case did not advise her that although she owns another property in New York City, she may have defenses to this non-primary residence holdover proceeding. Hall further alleges that the BUJ attorney told her to sign the Stipulation or face being responsible for paying the large sum of $25,000.00 in rent arrears. Hall alleges she questioned her BUJ attorney at the time and did not feel comfortable entering into the agreement but was told by her attorney that she "does not have a leg to stand on" and ultimately, she agreed to vacate the premises and signed the Stipulation. Hall further alleges that she did not want to waive her personal jurisdiction defense and only learned that she potentially had defenses such as personal jurisdiction, defective predicate notice, harassment and retaliation after she was counseled by the Legal Aid Society. In support of her defenses, Hall claims that the process server's description does exactly match her or her partner's mother, that she hasn't had a lease since April 30, 2023, that Petitioner is harassing her and has started this action in retaliation to her personal injury claim against Petitioner.

Respondent's current LAS attorney, supplementing Respondent's affidavit, disclosed that The Legal Aid Society are Respondent's attorneys in a non-payment proceeding LT Index No. 310246-24, entitled Marion Realty LLC v. Tanisha Hall, John Doe and Jane Doe, which is pending simultaneously with the subject holdover proceeding. The LAS attorney states, however, that they learned about the April 16, 2025 Stipulation in this holdover proceeding only after it was already submitted to the court. That once counsel learned about the Stipulation, they informed Hall about her potential defenses, filed a substitution of counsel and the instant motion.

Ultimately, Respondent argues that she signed the Stipulation without fully understanding her rights and defenses, that the Stipulation is unfair, and she would never have entered into such an agreement if she understood her rights. Respondent asserts the Stipulation is unduly one-sided and lacks consideration. Respondent alleges that her prior counsel allegedly "did not meet with her before pressuring her to sign the agreement, did not put in an answer, did not request any evidence from Ms. Hall" and allegedly did not investigate Respondent's claims or defenses and therefore, the court should treat Respondent as an unrepresented party and vacate the Stipulation. (See, NYSCEF Doc. 14, Attorney Aff par 46 in support of motion).

Petitioner opposes stating that the two-attorney Stipulation was duly negotiated and there is no evidence of fraud, mistake, overreach, unconscionability or illegality. Petitioner argues [*3]that it is undisputed that Respondent has purchased a property located at 150-30 116th Road, Jamaica, NY 11434. That Respondent's claim that she or her partner's mother do not completely match the description in the affidavit of service without additional information is not enough to defeat the affidavit of the process server. That Petitioner's cameras show Respondent visiting the premises once or twice a month and that the allegation of the untimely service of the predicate demand is belied by the executed lease agreement between the parties which expired on its terms on April 30, 2024.

In reply, aside from restating her arguments, Respondent admits that she did in fact have a lease agreement with Petitioner which expired on April 30, 2024, but argues the court should vacate the Stipulation and dismiss the proceeding because the Notice of Non-Renewal reads that the underlying lease expired on April 30, 2015.

It is fundamental that while stipulations of settlement are favored, they may be vacated where one can show "cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident" (Hallock v. State of NY, 64 NY2d 224, 230 [1984]) citing Matter of Frutiger, 29 NY2d 143, 149-150 [1971]). Enforcement of stipulations remains "subject to the supervision of the courts" and thus, the grounds for relief are not so closely confined (Malvin v. Schwartz 65 AD2d 769, affd 48 NY2d 693 [1978]). Also the Court "possesses the discretionary power to relive parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into unadvisedly or that it would be inequitable to hold the parties to it" (1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 [1987], lv to appl dism 73 NY2d 868 [1989], citing Matter of Fruitger, 29 NY2d 143, 150 [1971]; see also, Weissman v Bondy & Schloss, 230 AD2d 465, 469 [1st Dept 1007], [court may vacate stipulations for unilateral mistake where failing to do so would result in unjust enrichment of the other party]; Weitz v. Murphy, 241 AD2d 547, 548 [2nd Dept 1997], [held, "under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief"]; Bank of NY v. Forlini, 220 AD2d 377, 378 [2d Dept 1995]). Thus, "[v]acatur of a stipulation is appropriate when a party-especially one who appears without counsel-enters into an agreement improvidently, and, in so doing, forgoes defenses sufficient to defeat the proceeding" (Cashmere Realty Corp v. Hershi, NYLJ, December 28, 2005, at 19, col. 3 [Civ Ct Kings Co 2005], citing Genesis Holding, LLC v. Watson, 5 Misc 3d 127(A)[App Term 1st Dep 2004]; 1420 Concourse Corp. v. Cruz, 135 AD2d at 373).

Here, Respondent is not alleging one of the established principles of fraud, collusion, mistake, or accident when considering whether a two-attorney stipulation should be vacated. (See, Hallock v. State of NY, 64 NY2d 224, 230 [1984]). Rather Respondent in her affidavit argues that she entered into the Stipulation unadvisedly or that it would be inequitable to hold her to it. She urges this court to vacate the Stipulation alleging that she was misinformed by her prior counsel, did not know her rights and signed the stipulation with fear that she would owe over $25,000 in rent arrears. Respondent's present counsel on information and belief from what was relayed to her by her client, argues that to enforce the Stipulation would be unjust or inequitable and will permit Petitioner to gain an unconscionable advantage over Respondent. To support her assertion, Respondent's present counsel takes a strong position alleging that Respondent's prior counsel did not investigate her client's case and waived Respondent's defenses such as defects in the notice, harassment and retaliation among others just because the [*4]Stipulation was entered into on a third court appearance. The core of Respondent's argument is that she wishes to be relieved from the consequences of the agreement claiming ineffective counsel.

This court agrees that it has very broad discretion to relieve the parties from the terms of an agreement especially when an unrepresented party enters a stipulation improvidently without advice of counsel and waives defenses sufficient to defeat the proceeding. However, in reviewing the procedural history between the parties, the court finds that is not what happened here. Before this holdover proceeding was commenced, Respondent was already litigating the non-payment where LAS represented Respondent. In that action, LAS was aware of the impending holdover because when the parties settled the non-payment proceeding on December 12, 2024, the settlement was negotiated without prejudice to the holdover. That said, LAS was aware of the holdover long before the holdover was calendared and settled, and with that information, had ample opportunity to counsel Respondent and investigate Respondent's rights in the impending holdover. Respondent's present counsel, the LAS, was very quick to conclude that prior counsel BUJ may not have investigated Respondent's defenses prior to settling the holdover forming their assumption solely on the fact that BUJ waived Hall's jurisdictional defenses early in litigation and settled this holdover on the third court appearance. Review of the non-payment shows that LAS also settled the non-payment proceeding with a judgment of possession on the third appearance without interposing an amended answer. Respondent with her counsel LAS also agreed to pay the outstanding arrears knowing that her lease was terminated, and a non-primary holdover was pending. Respondent's counsel argues that ineffective counsel resulted in Respondent waiving her meritorious defenses in this holdover proceeding including harassment and retaliation but fails to mention why having a chance to do so first, LAS failed to interpose these defenses in the non-payment proceeding. With that said, the number of appearances or the length of the proceeding is not and should not be the determinative factor of whether counsel has provided effective representation to her client and should not be a factor in considering whether an otherwise comprehensive agreement should be subject to scrutiny.

Furthermore, the court finds it very hard to believe that Respondent while litigating her non-payment proceeding with counsel after she personally signed a stipulation of settlement where $6,079.00 was owed through December 2025 at $1,531,14 to be paid by March 31, 2025, would think that she would need to pay an additional $25,000.00 in rent arrears in April of 2025 in this holdover proceeding.^[FN2] Finally, as to the typo in the Notice of Non-Renewal regarding the termination date of the rent stabilized lease agreement, Respondent acknowledged that her lease terminated on April 30, 2024, making the typo just that, a typo, which her prior counsel may have chosen to waive as a deminimus defect.

The court notes that Respondent entered into a two-attorney Stipulation with the assistance of a highly sophisticated legal services provider with years of Landlord-Tenant experience and if counsel committed to settle this holdover proceeding so early in litigation and within such short time frame, the court must accept that counsel had a plan to timely and duly comply with the agreement and accept the consequences. Respondent's change of heart does not serve as basis to vacate otherwise duly negotiated two attorney Stipulation simply because [*5]Respondent feels she is getting a "poor bargain." (See, Panasia Estate Inc v Tapas y Mas LLC [2024 NY Slip Op 05898 App. Div 1st Dept 2024] [The unambiguous terms of an agreement that now appear as a poor bargain do not constitute a basis for recasting the agreement under the guise of judicial interpretation.]).

Notably, Respondent does not argue that any of the Stipulation's terms are illegal or unenforceable and therefore open to be struck. The court must agree with Petitioner, as parties should be able to resolve matters without fear that the court can insert itself in every two-attorney agreement absent legal basis, striking or vacating terms just because they no longer suit one party. If that were to be the case, it would effectively end negotiations and resolutions between otherwise competent parties. To that end, as here, based on the circumstances presented, this court declines to vacate the Stipulation dated April 16, 2025 and same shall remain in full force and effect.

Having upheld the Stipulation, the court now turns to Respondent-Occupant's Omowale Hewitt's motion and Petitioner's cross-motion. ("Occupant" or "Hewitt"). Hewitt moves to dismiss this proceeding pursuant to CPLR §1024 in its entirety or as to him only for alleged misuse of the pseudonym John Doe. Hewitt alleges that Petitioner knew or should have known his name or in the alternative seeks leave to interpose an answer. Petitioner opposes and cross-moves to amend the Petition to substitute John Doe for Omowale Hewitt and to strike his answer or in the alternative for an order dismissing only as to Omowale Hewitt.

Respondent is accurate in arguing that to employ the use of CPLR§ 1024, Petitioner must show that a timely effort was made to identify the correct party prior to commencing the proceeding. (See, RR Reo II, LLC v. Omeje, 33 Misc 3d 128(A) [App. Term 2nd, 11th and 13th Jud. Dist. 2011] citing Comice v. Justin's Rest, 78 AD3d 641 [2nd Dep't 2010]). Courts routinely dismiss petitions for failing to name a necessary party where petitioner had actual knowledge of the name and identity of an occupant. (See, Bumpus v. New York City Tr. Auth. 66 AD3d 26 [App. Div 2nd Dept 2009] ("parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence .. to identify the defendant by name and, despite such efforts, are unable to do so" citing Hall v Rao, 26 AD3d 694, 695 [ App. Div. 3d Dept 2006]; Justin v Orshan, 14 AD3d 492, 492-493 [2005]; Opiela v May Indus. Corp., 10 AD3d 340, 341 [App. Div 1st Dept 2004]; Tucker v Lorieo, 291 AD2d 261 [ App. Div. 1st Dept 2002]; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497 [ App. Div. 2nd Dept 1994]).

However, occupants and subtenants are not necessary but rather proper parties to the proceeding between the landlord and tenant and therefore dismissal as to them is not fatal to the balance of the proceeding. (See, Triborough Bridge & Tunnel Authority v Wimpfheimer 165 Misc 2nd 584 [App. Term 1st Dept 1995] citing Teacher's Coll. v Wolterding, 77 Misc 2d 81, 82 [App. Term 1st Dept 1974]; 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338 [App. Div 1st Dept 1991]; Randazzo v. Galietti 55 Misc 3d 131[A] App Term 2nd Dept 2017] (holding when landlord established that she and the tenant were the only signatories to the lease husband was not a necessary party to the proceeding). Additionally, the undertenant is not a party to the lease with landlord, not entitled to service of a notice of termination, and lacks standing to challenge the notice of termination served upon tenant. (See, 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338; Chelsea 139, LLC v Saunders, 32 Misc 3d 140[A], 2011 NY Slip Op 51572[U] [App Term, 1st Dept 2011]; West End Assoc. v McGlone, 32 Misc 3d 145[A], 2011 NY Slip Op 51732[U] [App Term, 1st Dept 2011]).

Here, Petitioner's cross-motion seeking to amend the pleadings and in opposition to [*6]Hewitt's affidavit attesting to Petitioner's knowledge of his name is only supported by an attorney affirmation and is therefore of no consequence and is denied. Petitioner's failure to include an affidavit from someone with personal knowledge in opposition is also compounded by the fact that Hewitt's name appears in the body of the Notice of Non-Renewal clearly signifying that Hewitt's name was known to Petitioner. Additionally, Hewitt submits photographs of the mailbox displaying his name. For these reasons, Respondent Hewitt's motion is granted, and the proceeding is dismissed only as to him.

Accordingly, Hall's motion to vacate the April 16, 2025 Stipulation is denied. The warrant may issue forthwith as to Tanisha Hall only, and execution is stayed pending service of the Marshal's notice only as to Tanisha Hall. Heweitt's motion to dismiss is granted and the proceeding is dismissed as to John Doe. Petitioner' cross-motion is denied. This proceeding is restored to the court's calendar on October 22, 2025 at 9:30 am for all purposes including transfer to trial as to Jane Doe.

This constitutes the Decision and Order of this court, a copy of which shall be uploaded to NYSCEF.