133 Plus 24 Sanford Ave. Realty Corp. v. Xiu Lan Ni

• Decision Date: 23 February 2015
• Docket Number: 2012-2033 Q C
• Citation: 7 N.Y.S.3d 819,2015 N.Y. Slip Op. 25059,47 Misc.3d 55
• Parties: 133 PLUS 24 SANFORD AVE. REALTY CORP., Appellant, v. XIU LAN NI, Respondent, and “XYZ Corp.”, “John Doe” and “Jane Doe”, Undertenants.
• Court: New York Supreme Court — Appellate Term

47 Misc.3d 55

7 N.Y.S.3d 819

2015 N.Y. Slip Op. 25059

133 PLUS 24 SANFORD AVE. REALTY CORP., Appellant

v. XIU LAN NI, Respondentand“XYZ Corp.”, “John Doe” and “Jane Doe”, Undertenants.

2012-2033 Q C

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Feb. 23, 2015.

Horing Welikson & Rosen P.C., Williston Park (Richard T. Walsh of counsel), for appellant.

PRESENT: PESCE, P.J., WESTON and ELLIOT, JJ.

Opinion

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered May 9, 2011. The order, insofar as appealed from and as limited by the brief, after a hearing, denied landlord's motion for the entry of a final judgment of possession and the issuance of a warrant of eviction based on tenant's failure to comply with a stipulation of settlement, and made various determinations with respect to the rights of the parties, in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is modified by striking the various determinations with respect to the rights of the parties; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this commercial holdover proceeding, landlord and tenant, Xiu Lan Ni, entered into a stipulation of settlement dated July 2, 2009, wherein tenant agreed to (1) install gas, sewer and water meters, (2) obtain a certificate of occupancy for the premises, and (3) pay landlord $100,000 in two $50,000 installments. The stipulation of settlement further provided that once the water and gas meters were installed, the average cost, calculated over the next six-month period, would be used to calculate the average amount owed to landlord for these services. In November 2010, landlord moved for, among other things, the entry of a final judgment of possession and the issuance of a warrant of eviction based on tenant's failure to comply with the stipulation of settlement. After a hearing, the Civil Court denied landlord's motion and made the following determinations with respect to the rights of the parties:

“2. The payments made to date by Respondent–Tenant, including the $100,000.00 payment made in two equal installments on July 6, 2009 and July 16, 2009, are in full satisfaction of all sums due to the Petitioner–Landlord, and of all claims of said Petitioner–Landlord to date, including claims for reimbursement based upon Respondent's average gas and water usage from September 2005.

3. The existing lease shall remain in full force and effect until the termination date of October 31, 2015.

4. Respondent–Tenant shall be relieved of their obligation to pay Petitioner–Landlord the amount of Three Thousand and 00/100 Dollars ($3,000.00) monthly which was in addition to their monthly rent, and meant to cover all water, gas and hot water usage. To that effect, all prospective water bills shall be presented by Petitioner–Landlord to Respondent–Tenant monthly via written copy of said bill attached to the statement of rent due, or Petitioner–Landlord shall arrange to have the bill sent directly by the DEP to Respondent–Tenant. Additionally, all gas and electric bills shall be paid by Respondent–Tenant directly as per its present account.

5. Petitioner–Landlord shall allow for access to the basement so that Respondent–Tenant may have installed a gas fired hot water heater within 30 days hereof, or forfeit any right to future reimbursement for charges related to same.

6. The Respondent–Tenant shall be obligated to procure a Certificate of Occupancy only when the Petitioner–Landlord removes and resolves all currently existing violations on the building.”

The law requires strict construction of language in written instruments that could work a forfeiture (Lerner v. Johnson, 167 A.D.2d 372, 375, 561 N.Y.S.2d 601 [1990] ). Here, there was no provision in the stipulation which provided for the entry of a final judgment based upon a default under the stipulation. In the absence of such a provision, landlord is not entitled to a final judgment of possession based upon a breach of the stipulation (see Chuang v. Quezada, 6 Misc.3d 1023[A], 2005 N.Y. Slip Op. 50166[U], 2005 WL 386286 [Civ.Ct., Kings County 2005] ; cf. Spring Close, LLC v. Players Restaurant Group Inc., 7 Misc.3d 130[A], 2005 N.Y. Slip Op. 50539[U], 2005 WL 856932 [App. Term, 9th & 10th Jud. Dists. 2005] ).

“It is well settled that injunctive relief is generally not available in a summary proceeding brought in the Civil Court” (Waxman v. Patabbe, Inc., 42 Misc.3d 142[A], 2014 N.Y. Slip Op. 50221[U], *1, 2014 WL 683922 [App Term, 2d, 11th & 13th Jud. Dists. 2014] ; see North Waterside Redevelopment Co. v. Febbraro, 256 A.D.2d 261, 682 N.Y.S.2d 202 [2003] ; Hotel New Yorker Pharmacy v. New...