125 Court St., LLC v. Nicholson

• Docket Number: 2020-01724,Index No. 63946/10
• Decision Date: 08 March 2023
• Citation: 184 N.Y.S.3d 831
• Parties: In the Matter of 125 COURT STREET, LLC, appellant, v. Yolande NICHOLSON, respondent-respondent, et al., respondents.
• Court: New York Supreme Court — Appellate Division

184 N.Y.S.3d 831

In the Matter of 125 COURT STREET, LLC, appellant,

v.Yolande NICHOLSON, respondent-respondent, et al., respondents.

2020-01724

Index No. 63946/10

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 12, 2022

March 8, 2023

Leon I. Behar, P.C., New York, NY (Leon I. Behar and Elliott S. Martin of counsel), for appellant.

Lynn Armentrout, Brooklyn, NY, for respondent-respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In a summary holdover proceeding, the petitioner appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated December 20, 2019. The order modified an order of the Civil Court of the City of New York, Kings County (Leslie A. Stroth, J.), entered April 18, 2018, by granting that branch of the motion of the respondent Yolande Nicholson which was, in effect, for leave to renew her prior motion to vacate two so-ordered stipulations of settlement dated June 10, 2010, and July 27, 2010, respectively, and a judgment of the same court (Anthony J. Fiorella, Jr., J.) entered June 10, 2010, which prior motion had been denied in an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.) dated May 11, 2011, upon renewal, granting that respondent's prior motion, and, upon vacatur of the so-ordered stipulations of settlement and the judgment, granting that branch of that respondent's motion which was to dismiss the petition insofar as asserted against her, and remitting the matter to the Civil Court of the City of New York, Kings County, for a determination of that branch of that respondent's motion which was to be restored to possession of the subject premises, following the joinder of the new tenant in possession, if any.

ORDERED that the order dated December 20, 2019, is affirmed, with costs.

In February 2010, the petitioner, 125 Court Street, LLC, commenced this summary holdover proceeding in the Civil Court of the City of New York, Kings County, against the respondent Yolande Nicholson (hereinafter the respondent), among others, based on the respondent's alleged failure to execute a renewal lease for the subject premises. On June 10, 2010, the respondent, through counsel, entered into a so-ordered stipulation of settlement in which she admitted that she owed the petitioner $22,423.21 in rent for use and occupancy of the subject premises following the expiration of the lease and agreed to surrender the subject premises in exchange for a reduction in the amount owed. The stipulation of settlement set the rate for the respondent ‘s use and occupancy in the amount of $3,576 per month until the agreed upon surrender of the subject premises. A judgment was entered on June 10, 2010, pursuant to the stipulation of settlement. In July 2010, the respondent moved to vacate the stipulation of settlement, asserting that it contained terms that she had not authorized. The respondent's motion was subsequently withdrawn and the parties entered into a second so-ordered stipulation of settlement dated July 27, 2010. The second stipulation of settlement modified the first stipulation of settlement by, among other things, reducing the amount owed to the petitioner.

In September 2010, with new counsel, the respondent moved to vacate the stipulations of settlement and the judgment on the ground that she had inadvertently waived her right to cure the failure to renew the lease post-judgment (hereinafter the September 2010 motion). By order dated May 20, 2011, the Civil Court, inter alia, denied the motion. The respondent appealed from that order. By order dated June 13, 2014, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Appellate Term) affirmed (see 125 Ct. St., LLC v. Nicholson, 44 Misc.3d 128[A], 2014 N.Y. Slip Op. 50973[U], 2014 WL 2870197 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists.] ).

The respondent was evicted from the subject premises on July 14, 2014. On the same day, the respondent moved, among other things, to vacate the stipulations of settlement and the judgment and to be restored to possession of the subject premises on the ground that she had not received a marshal's notice. By order dated July 16, 2014, the Civil Court, inter alia, denied those branches of the motion.

Thereafter, the respondent moved, in effect, to renew the September 2010 motion, to dismiss the petition insofar as asserted against her, to be restored to possession of the subject premises, and for an award of attorneys’ fees on the grounds of fraud and newly discovered evidence. In support of her motion, she submitted a letter dated June 14, 2011, from the New York City Department of Housing Preservation and Development (hereinafter HPD) to the petitioner's attorney which stated that the petitioner received a RPTL 421–a tax abatement and the rents registered by the petitioner exceeded the legal limit permitted pursuant to the abatement program. By order dated September 19, 2014, the Civil Court denied the motion on the ground that the issues raised had been previously determined on the respondent's appeal from the order dated May 20, 2011, and in the order dated July 16, 2014.

The respondent separately appealed from the orders dated July 16, 2014, and September 19, 2014, which appeals were consolidated by the Appellate Term. By order dated September 7, 2016, the Appellate Term, inter alia, reversed the order dated September 19, 2014, and remitted the matter to the Civil Court for a new determination of the respondent's motion (see 125 Ct. St., LLC v. Nicholson, 52 Misc.3d 144[A], 2016 N.Y. Slip Op. 51281[U], 2016 WL 4798834 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists.] ). Upon remittal, by order entered April 18, 2018, the Civil Court, among other things, denied those branches of the respondent's motion which were, in effect, for leave to renew the September 2010 motion, to dismiss the petition insofar as asserted against her, and to be restored to possession of the subject premises. The respondent appealed.

The Appellate Term, with one Justice dissenting in part, modified the order entered April 18, 2018, by granting that branch of the respondent's motion which was, in effect, for leave to renew the September 2010 motion to vacate the stipulations of settlement and the judgment, upon renewal, granting the September 2010 motion, and, upon vacatur of the stipulations of settlement and the judgment, granting that branch of the respondent's motion which was to dismiss the petition insofar as asserted...