215 Bush Street Co. v. Jose

• Decision Date: 29 January 1990
• Citation: 553 N.Y.S.2d 278,146 Misc.2d 997
• Parties: 215 BUSH STREET COMPANY, substituted for Alexander Associates, Petitioner, v. Morillo JOSE, et al., Respondents.
• Court: New York City Court

Page 278

553 N.Y.S.2d 278

146 Misc.2d 997

215 BUSH STREET COMPANY, substituted for Alexander Associates, Petitioner, v. Morillo JOSE, et al., Respondents.

Civil Court of the City of New York,

Bronx County, Housing Part 18C.

Jan. 29, 1990.

Novick & Kaner, P.C., New Rochelle, for petitioner.

Legal Aid Society, Richard Marsico, Bronx, for respondents.

CARL O. CALLENDER, Judge.

This case raises the question: may a tenant who has signed a court stipulation (that has not been so ordered by the court) have a final Judgment and a warrant of eviction issued against her when she has never been sued by the petitioner in a summary proceeding? The attorney for the landlord says yes. He indicates his agreement with that proposition by moving for a final judgment and warrant of eviction against the tenant, Mae King, under index numbers 79054, 79057, 79058, 81026-81034, and 81036-81041, 18 index numbers. None of these eighteen index numbers name this tenant as a respondent therein. The landlord admits that the tenant was never sued as a respondent, but contends that since she signed a stipulation that was also signed by the named parties therein, she receives the same benefits and should be held to the same sanctions upon default as the parties therein. The attorneys for both sides said they thought the tenant would be subject to the same sanctions and remedies as the named parties. They both agreed that under the stipulation in question a final judgment and warrant of eviction could be issued. I disagree.

Some of the relevant terms of the stipulation are as follows:

1. Paragraph two states that "all cases as indicated by the index numbers above are joined for purposes of trial, hearings or applications but this shall not bar the court from making decisions, judgments or orders from time to time which apply to particular tenants only."

2. Paragraph four states that "the stipulation shall be binding on the Petitioner, all Respondents who have appeared herein and who have signed this agreement, the tenants association and its officers, and, in addition any tenants who have not been sued or appeared in these proceedings but who, as of the date hereof, have deposited their rental arrears with the Tenants Association and who sign this agreement, or a counterpart thereof and deliver a copy of said signed agreement to Petitioner's attorney by September 22, 1989."

3. Paragraph fourteen of the stipulation mandates that upon substantial completion of all repairs the tenants are required to pay all rents accrued through August 31, 1989 less a 50% abatement.

4. The closing paragraph of the stipulation (sixteen) says that "all pending cases shall be removed from the trial calendar subject to restoration on five days notice in the event any party wishes to apply for any available relief."

The owner of the premises claims that because the tenant has failed to comply with the terms of the stipulation, a final Judgment should be awarded and warrant of eviction granted against her.

In fact, if the tenant failed to comply with paragraph four of the stipulation, both parties to the agreement have already stated that the stipulation would have no binding effect on the tenant. The owner alleges in the motion papers that the tenant failed to deposit her arrearages with the tenants association as was required by paragraph four. Nor has there been a claim that she delivered a copy of the signed agreement to the petitioner's attorney. This was also required by paragraph four. Thus, there is no basis for the assertion that the parties contemplated that the tenant in question should be bound by the terms of the stipulation.

An additional question is even if the terms of the stipulation were found to have a...