Seventy-Second St. Properties, Inc. v. Woods

• Decision Date: 18 August 1971
• Docket Number: SEVENTY-SECOND
• Citation: 67 Misc.2d 539,324 N.Y.S.2d 339
• Parties: STREET PROPERTIES, INC., Petitioner (Landlord), v. Charles W. WOODS, Respondent (Tenant).
• Court: New York City Court

Page 339

324 N.Y.S.2d 339

67 Misc.2d 539

SEVENTY-SECOND STREET PROPERTIES, INC., Petitioner (Landlord), v. Charles W. WOODS, Respondent (Tenant).

Civil Court of the City of New York, New York County, Trial

Term, Part 50.

Aug. 18, 1971.

Burton Citak, New York City, for petitioner.

Gerald D. Broden, New York City, for respondent.

HOWARD E. BELL, Judge.

This is the third summary proceeding commenced by the Petitioner (Landlord) against the Respondent (Tenant), within the past ten months, involving the same apartment. The first, a holdover proceeding (Index 98752/70), terminated in a Final Judgment for Respondent dismissing the petition. The second, a nonpayment proceeding (Index 28450/71) terminated as follows: A stipulation was placed on the record in which Respondent consented to a Final Judgment in favor of Petitioner in the amount of $1,560.00; a hearing was conducted on the issue of Respondent's counterclaims for attorney's fees in defending both of the above mentioned proceedings. Respondent was awarded a total of $550.00 on his counterclaims.

In the instant proceeding (the third) Petitioner seeks to recover rent in the amount of $274.40 for the month of May 1971, plus 'additional rent' in the amount of $500.00, for attorney's fees incurred in prosecuting the prior nonpayment proceeding against the Respondent.

Prior to the commencement of the instant proceeding the rent for the month of May 1971 in the amount of $274.40 was tendered to the Petitioner but was rejected because it did not include the additional rent of $500.00.

Paragraph '17' of the lease provides as follows:

'If tenant shall default in the performance of any covenant on Tenant's part to be performed by virtue of any provision in any article in this lease contained, Landlord may immediately, or at any time thereafter, without notice, perform the same for the account of Tenant. If Landlord at any time is compelled to pay or elects to pay any sum of money, or do any act which will require the payment of any sum of money by reason of the failure of Tenant to comply with any provision hereof, or, if Landlord is compelled to incur any expense including reasonable attorney's fees in instituting prosecuting and/or defending any action or proceeding instituted by reason of any default of Tenant hereunder, the sum or sums so paid by Landlord with all interest, costs and damages, shall be deemed to be additional rent hereunder and shall be due from Tenant to Landlord on the first day of the month following the incurring of such respective expenses.'

The Respondent has interposed an answer that contains two counterclaims in addition to general denials and affirmative defenses. The first counterclaim seeks to recover the sum of $5,000.00 from the Petitioner for harassment. The second counterclaim seeks to recover the sum of $1,000.00 as attorney's fees, pursuant to Section 234 of the Real Property Law, in having to defend this proceeding.

At the time the stipulation of settlement was placed on the record all the parties were present in court and agreed to its terms. There is no doubt the parties understood that the Final Judgment in favor of the Petitioner in the amount of $1,560.00, which was consented to by the Respondent, covered all of the claims of the Petitioner for rent. No provision was made therein for attorney's fees as additional rent. If such fees had been desired it would have surely been placed in the stipulation as were the terms of the new lease the parties negotiated.

To grant Petitioner a Final Judgment for attorney's fees for the previous nonpayment proceeding would in effect be vacating and setting aside a settlement. 'To permit settlements so made to be vacated except upon a showing of good cause therefor, such as fraud, collusion, mistake, accident or some other ground of the same nature, * * * would open the door to possible abuse and make litigation interminable' (Achtel v. Lieberman, Sup., 141 N.Y.S.2d 750, 752; see also Downs v. Mortimer, Sup., 73 N.Y.S.2d 416; cf. Yonkers Fur Dressing Co. v. Royal Insurance Co., 247 N.Y. 435, 160 N.E. 778). 'A contemporaneous mental reservation, or a subsequent change of mind as to the adequacy of a bargain which has been made, is wholly insufficient in law or equity to destroy a contract of compromise and settlement formally entered into by persons who at the time apparently believed that they have received the best price obtainable on their claim' (8 N.Y.Jur.; Compromise and Settlement Sec. 24).

The Court believes that the attorney's fees sought herein as additional rent was an afterthought on behalf of Petitioner to recoup and/or offset the $550.00 recovered by the Respondent on his counterclaims. In as much as such fee was not included in the stipulation of settlement the Petitioner has waived the same and is not entitled to recover.

There are two additional issues presented herein that the Court feels should be decided even though the above determination would dispose of this matter. The first of these is whether there was a lease in existence during the period for which Petitioner received a Final Judgment for rent in the prior proceeding. If there were no lease, it follows that there is no paragraph 17 under which Petitioner could claim attorney's fee.

The Respondent was an assignee of a lease that expired on October 31, 1970. A new lease dated April 21, 1971, was executed by the parties, to commence May 1, 1971. The rent recovered by the Petitioner in the prior proceeding was for the months of November 1970 through April 1971.

It is conceded that the premises in question were covered by the Rent Stabilization Law (...