1700 Harrison LLC v. Whetstone
| Decision Date | 02 September 2021 |
| Citation | 2021 NY Slip Op 50825 (U) |
| Parties | 1700 Harrison LLC, Petitioner-Landlord, v. Karen Whetstone, Respondent-Tenant, DAVID WHETSONE, "JOHN DOE" and "JANE DOE", Respondents-Undertenants. |
| Court | New York Civil Court |
Unpublished Opinion
Attorney for Petitioner
Gregory Smith, Esq.
Hertz Cherson & Rosenthal, P.C.
Attorney for Respondent:
Nicole Siderits, Esq.
Mobilization for Justice, Inc.
Recitation as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner's motion to vacate the September 27, 2019 stipulation and Respondent David Whetstone's cross-motion for an order of contempt, consolidated herein for disposition:
Papers Numbered
Petitioner's Affirmation and Affidavit in Opposition 13, 14
Respondent's Reply Affirmation and Memorandum of Law 15, 16
This is a holdover eviction proceeding that was commenced by notice of petition and petition in February 2019 based upon the allegation that Respondent Karen Whetstone, the Rent Stabilized tenant of record, no longer used the subject apartment as her primary residence. Respondent David Whetstone appeared and retained counsel [1], and, after a number of adjournments for various reasons including motion practice, on September 27, 2019 the parties resolved the case by a "Stipulation of Discontinuance" ("the Stipulation"), so-ordered by Housing Court Judge Weissman, that, inter alia, recognized David Whetstone as the successor to Karen Whetstone's tenancy, acknowledged Respondent's payment to Petitioner of $11, 871.40 and discontinued the proceeding with prejudice.
At issue before the court now is a provision of the Stipulation which states that Petitioner Further, "The parties acknowledge that the Court retains jurisdiction over enforcing the terms of this stipulation." Petitioner moves to vacate the Stipulation and set the case down for trial and Respondent cross-moves for "civil contempt of and noncompliance with" the Stipulation. These motions have been pending for over a year and a half, with the delay attributed initially to the COVID-19 pandemic, then to the parties' protracted attempts through counsel to settle the motions and then because Respondent filed a "Hardship Declaration" pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA), which stayed the proceeding through August 31, 2021 under CEEFPA Part A, § 6. That stay has now both expired and been enjoined by the United States Supreme Court, Chrysafis v Marks (2021 U.S. LEXIS 3635, 2021 WL 3560766 [Aug 12, 2021]).
Petitioner's attorney asserts that on October 1, 2019, as required by the Stipulation, she emailed Respondent's attorney the new lease - in Respondent's name, commencing October 1, 2019 and with a rent of $935.70 - and that Respondent failed to sign and return it. The motion is supported by Petitioner's attorney's affirmation, an affidavit of Petitioner's managing agent and a copy of the Stipulation. Petitioner asks the court to vacate the Stipulation, return the parties "to the status quo" prior to the signing of the Stipulation and set the case down for trial.
Respondent opposes the motion and asserts that the proffered lease was rejected because it was in the wrong format, arguing that, as a successor tenant, under Rent Stabilization Code ("RSC") § 2523.5(b) Respondent is "entitled to be named as a tenant on the renewal lease", not proffered a new lease. Respondent argues that there is no basis to vacate the stipulation, citing Hallock v State of New York (64 N.Y.2d 224, 230, 474 N.E.2d 1178, 485 N.Y.S.2d 510 [1984]) and Matter of Frutiger (29 N.Y.2d 143, 150, 272 N.E.2d 543, 324 N.Y.S.2d 36 [1971]). Respondent also argues that the procedure for challenging alleged noncompliance with a stipulation is a motion for contempt, not a request to vacate it, that it is Petitioner who has not complied with the agreement and that, accordingly, Respondent seeks contempt against Petitioner in his cross-motion.
Respondent asserts that Petitioner has refused to offer a proper lease as required by the Stipulation and asks the court to punish Petitioner for civil contempt pursuant to Judiciary Law § 750 et seq. and CPLR § 5104. Respondent states in his supporting affidavit that without a lease he has been unable to access "various benefits and services" such as rent assistance. Respondent seeks relief of a $250 fine, actual damages, costs and attorney's fees.
In opposition to Respondent's cross-motion, Petitioner asserts that the lease it proffered fully complied with the terms of the Stipulation and further "contained the same terms and conditions as Karen Whetstone's lease." Affidavit of Ivette Moss, sworn to July 20, 2020, at ¶ 5. Copies of Karen Whetstone's original lease dated August 1, 1992 and the October 1, 2019 lease proffered to Respondent, both prepared on a "Plain Language Standard Apartment Lease" form, are attached to Petitioner's reply papers.
Petitioner asserts not only that it did comply with the parties' agreement but that the cross-motion for contempt must be denied because the Stipulation is not based on a "lawful court order" and the court lacks jurisdiction to order Petitioner to offer the Respondent a specific type of lease. Petitioner argues that the Housing Court has limited equitable power, may not grant injunctive relief except in proceedings for the enforcement of housing standards and certain provisional remedies and lacks the jurisdiction to issue an order of contempt for the failure to give Respondent a renewal lease, citing to the New York City Civil Court Act §§ 203[o], 209 [b]; Broome Realty Associates v Sek Wing Eng (182 Misc.2d 917, 918, 703 N.Y.S.2d 360, 361 [App Term 1st Dep't 1999]) and N Waterside Redevelopment Co, LP v Febbraro (256 A.D.2d 261, 682 N.Y.S.2d 202 [1st Dep't 1998], lv dism'd 93 N.Y.2d 888, 689 N.Y.S.2d 430 [1999]). Petitioner posits that Respondent is not without a remedy to enforce the Stipulation as he can file an administrative complaint at the New York State Division of Housing and Community Renewal (DHCR) or a plenary action in State Supreme Court. Petitioner alternately argues that should the Court find it does have the jurisdiction to adjudicate a claim of contempt for Petitioner's failure to offer Respondent a renewal lease, Respondent fails to make out such a claim because Petitioner's copy of the Stipulation is not "so ordered" and even if it had been, the Stipulation does not include a clear and unequivocal requirement that Petitioner offer Respondent a renewal lease, as opposed to a new lease in his name.
Petitioner also asserts that it is prepared to send Respondent a renewal lease on the form prescribed by DHCR to commence on October 1, 2019 at the monthly rent agreed upon of $935.70. Moss Affidavit at ¶ 9.
On reply, Respondent argues that Petitioner raised no valid grounds for vacating the Stipulation; that the court has the requisite jurisdiction to enforce the Stipulation via contempt as it includes a provision stating that "the Court retains jurisdiction over enforcing" its terms; fines, fees and actual damages are all appropriate forms of relief; and contempt is appropriate because (1) the Stipulation was in fact "so ordered" by the court and therefore constitutes a lawful court order; (2) "The express terms of the Stipulation, coupled with the unambiguous requirements of the law, create an unequivocal mandate sufficient for a contempt finding," Reply Memorandum of Law at p. 5; and (3) Respondent has been prejudiced by Petitioner's failure to comply with the Stipulation.
Courts have long favored and encouraged parties to enter into stipulations of settlement as a means of expediting and simplifying the resolution of disputes, and "unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course." Mitchell v NY Hosp (61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 151 461 N.E.2d 285, 288 [1984]). Traditional principles of contract interpretation apply to settlement agreements, Brad H v City of NY (17 N.Y.3d 180, 185, 928 N.Y.S.2d 221, 224, 951 N.E.2d 743, 746 [2011]), as follows:
A written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties. To determine whether a writing is unambiguous, language should not be read in isolation because the contract must be considered as a whole. Ambiguity is determined within the four corners of the document; it cannot be created by extrinsic evidence that the parties intended a meaning different than that expressed in the agreement and, therefore, extrinsic evidence "may be considered only if the agreement is ambiguous". Ambiguity is present if language was written so imperfectly that it is susceptible to more than one reasonable interpretation.
Id. (17 N.Y.3d at 185-86, 928 N.Y.S.2d at 224, 951 N.E.2d at 746).
Once entered into, stipulations of settlement "are favored by the courts and are not lightly cast aside." Hallock v State of New York (64 N.Y.2d 224, 230, 474 N.E.2d 1178, 485 N.Y.S.2d 510 [1984]). This is...
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