Appeal from an order of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), dated May 7, 2009. The order, insofar as appealed from as limited by the brief, denied tenants' motion seeking, in effect, to vacate a stipulation of settlement and the final judgment entered pursuant thereto, and to be restored to possession.

ORDERED that the order, insofar as appealed from, is reversed without costs and the matter is remitted to the Civil Court for a determination de novo, following a hearing, of tenants' motion, in effect, to vacate the stipulation of settlement and the final judgment, and to be restored to possession, in accordance with the decision herein.

In this holdover proceeding based upon a claim that the tenancy was terminated by service of a 30-day notice, the parties entered into a stipulation of settlement dated October 17, 2006 pursuant to which tenants agreed to surrender the premises. Thereafter, a quiet title action was commenced against landlord and its predecessor, among others, in Supreme Court, Kings County. On December 11, 2006, the Supreme Court signed an order to show cause which restrained enforcement of the stipulation. On March 28, 2007, the Supreme Court granted a preliminary injunction staying any eviction proceedings, noting that it was unclear whether landlord held good title. By order dated October 29, 2008, the Supreme Court denied landlord's motion to dismiss the quiet title action; however, the court lifted the stay previously imposed on enforcement of the stipulation, stating that the stipulation was "beyond the particulars of [the Supreme Court] lawsuit" because tenants were not parties to the Supreme Court action.

On November 14, 2008, the Civil Court signed an order to show cause by tenants seeking to restore the instant matter to the calendar. Tenants also sought vacatur of the stipulation or, in the alternative, a stay of the warrant pending the resolution of the Supreme Court quiet title action. By order dated March 6, 2009, the Civil Court granted tenants' motion to the extent of staying execution of the warrant pending a final determination in the Supreme Court action on condition tenants deposit monthly use and occupancy into court. On April 13, 2009, tenants again moved to
restore the matter to the calendar and to vacate the final judgment of possession. An attorney for [*2]landlord submitted an affirmation in opposition to tenants' motion, asserting that the stay should be lifted and the stipulation enforced because tenants had failed to make the monthly use and occupancy payments. By order dated May 1, 2009, the Civil Court denied tenants' motion, and, in light of tenants' failure to make the use and occupancy payments, vacated all previously granted stays. Following their eviction, tenants again moved to, in effect, vacate the stipulation of settlement and the final judgment, and to be restored to possession. In an affidavit in support of their motion, tenants argued that landlord lacked standing to maintain the instant proceeding. Tenants appeal, as limited by their brief, from so much of the Civil Court's order, dated May 7, 2009, as denied their motion seeking, in effect, to vacate the stipulation of settlement and final judgment, and to be restored to possession.

According to the March 28, 2007 Supreme Court order, tenants are children of Gloria Scott, who predeceased her mother, Gertrude Price, who was a one-half owner of the property. This Supreme Court order further indicates that Gertrude Price died intestate, and, thus, it appears, her one-half interest in the premises would have passed equally to her five children, Gloria Scott, Curtis Montgomery, Rosita McCray, Robert Scott and Martina Price (see EPTL 4-1.1 [a] [3]). However, since Gloria Scott had
predeceased Gertrude Price, Gloria Scott's one-tenth interest would have passed
equally to tenants (and any other children Gloria Scott had). Therefore, depending on how many children Gloria Scott had, it appears that tenants may have inherited as much as a combined one-tenth interest in the premises upon Gertrude's death (see EPTL 1-2.16). In the Supreme Court action, Rosita McCray, landlord's grantor, maintained that she had obtained title to the premises following Gertrude Price's death when she, Curtis Montgomery and Martina Price had transferred their interests in the premises to her by quitclaim deed. However, Montgomery asserted in the Supreme Court action that his signature on the quitclaim deed was forged, and there has been no claim that Robert Scott or tenants signed this deed.

If the facts are as presented in tenants' submissions, and as landlord's grantor could only convey to landlord the interest that she possessed (see Kraker v Roll, 100 AD2d 424 [2d Dept 1984]), it appears that landlord is a tenant in common with tenants (and possibly others). Because there is no landlord-tenant relationship between tenants in common, one tenant in common cannot maintain a holdover proceeding against another tenant in common (Henry v Green, 126 Misc 2d 360 [Mount Vernon City Ct 1984]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 38:21). A hearing is necessary to ultimately determine whether the facts are as asserted by tenants. Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination de novo, following a hearing, of whether the stipulation and final judgment should be vacated on the ground that tenants, while unrepresented by counsel, inadvertently waived their right to assert this fundamental defect in the proceeding (see Matter of Frutiger, 29 NY2d 143, 150 [1971] [approving vacatur where a party "inadvertently, unadvisably or improvidently" entered into the settlement]; 600 Hylan Assoc. v Polshak, 17 Misc 3d 134[A], 2007 NY Slip Op 52225[U] [App Term, 2d & 11th Jud Dists 2007] [vacating a stipulation where the pro se tenant waived a substantial and meritorious laches defense]; Hegeman Asset LLC v Smith, 5 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2004]; see also Solack Estates v Goodman, 78 AD2d 512 [1st Dept 1980]). The issue of whether tenants should be restored to [*3]possession should also be determined following the hearing.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: August 13, 2010