Cite as: 414 East 77 Realty LLC v. Bennett, 570954/11, NYLJ 1202589066423, at *1 (App. Tm., 1st, Decided November 30, 2012)

Before: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.

Decided: November 30, 2012




Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated March 8, 2011, which denied her application for an adjournment, and (2) an order of the same court (Peter M. Wendt, J.), dated November 14, 2011, which denied her motion to vacate a stipulation settling a holdover summary proceeding.


Order (Peter M. Wendt, J.), dated November 14, 2011, reversed, with $10 costs, motion granted, stipulation and final judgment vacated, and matter remanded to Civil Court for further proceedings. Appeal from order (John H.




Stanley, J.), dated March 8, 2011, dismissed, without costs, as academic.

This holdover summary proceeding, premised upon allegations that the long-term rent stabilized tenant failed to cure several claimed lease violations — most notably the harboring of upwards of 21 cats in the demised apartment premises — was settled by way of a March 8, 2011 so-ordered stipulation whose terms required the unrepresented tenant to vacate her home of over 17 years within five months in exchange for landlord's waiver of roughly six months of rent arrears then due (in an amount now challenged by tenant) and accruing use and occupancy.

While a stipulation is essentially a contract and should not be lightly set aside, the court possesses the discretionary power to relieve parties from the consequences of a stipulation where, as here, it appears that the stipulation was entered into inadvisedly or improvidently (see Matter of Frutiger, 29 NY2d 143, 150 [1971]). Tenant, now represented by counsel, has submitted medical evidence indicating that she suffers from several specified maladies that may have affected her ability to make "a thoughtful and informed decision" as to how to proceed in this matter, as




well as evidence tending to show that, with the aid of counsel, all of the cats complained of have now been removed from the premises. In these circumstances, and given tenant's offer to tender all use and occupancy presently due, we favorably exercise our discretion to relieve tenant of her uncounseled decision to vacate her home of many years and forgo the opportunity to defend the petition on the merits. While there may be factors supporting the motion court's enforcement of the stipulation as written — including tenant's statement during the course of the stipulation's allocution reflecting a professed inability or unwillingness to remove the cats — we are satisfied that, on balance, the preferred result is to vacate the stipulation so as to restore the parties to the status quo ante.