Petitioner commenced this nonpayment proceeding in July 2010, alleging respondent owed rental arrears and legal fees for this rent stabilized apartment totaling $11,475.53. Respondent interposed an answer with a general denial but without any specific affirmative defenses. Subsequently, the parties settled this proceeding pursuant to a "so-ordered" stipulation dated December 14, 2010, whereby the case was converted to a holdover proceeding in consideration of the landlord waiving $1,981.72 in rental arrears. The stipulation granted petitioner a final judgment of possession, with a warrant of eviction to issue forthwith, execution of same stayed through February 14, 2011 for respondent to vacate. The stipulation further granted a money judgment in favor of petitioner in the amount of $9,898.11, representing rental arrears.^[FN1] Respondent has since retained counsel and seeks, by order to show cause, vacatur of [*2]the December 14, 2010 stipulation and leave to interpose an amended answer. Respondent alleges two grounds for vacatur of the aforementioned stipulation. One, petitioner provided insufficient consideration to convert the proceeding to a holdover within an unduly harsh and one-sided stipulation. Two, respondent improvidently entered into the stipulation unaware of defenses available to her, including laches, breach of warranty of habitability and petitioner seeks eviction for sums erroneously paid by the Dept. of Social Services Human Resource Association to a predecessor of petitioner. (See Waxenberg v Rivera, NYLJ, Oct. 8, 1993, at 21, col 4.)

Stipulations are favored and will not lightly be cast aside. (Hallock v State of NY, 64 NY2d 224 [1984]; Matter of Guttenplan, 222 AD2d 255 [1995], lv denied 88 NY2d 812 [1996].) Generally, only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Hallock v State of NY, 64 NY2d 224, supra). However, the court may vacate a stipulation where it appears that a party has "inadvertently, unadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action and works to his prejudice." (Matter of Frutiger, 29 NY2d 143, 149-150 [1971].) Moreover, the housing court's discretion to vacate a stipulation exceeds that applicable to a contract, (Knickerbocker Village v Doe, NYLJ, Jan 5, 1994, at 21, col 2 [App Term, 1st Dept]), and the court may act to avoid an unjust result. (CPLR 2201; MacLeod v Shapiro, 20 AD2d 424 [1st Dept 1964].) Where possessory rights are at stake and it appears that an unrepresented party may have unadvisedly entered into an agreement, the housing court has the discretion to vacate a stipulation. (Solack v Goodman, 102 Misc 2d 504 [1st Dept 1980]; City of NY v Hicks, NYLJ, Feb. 3, 1992, at 24, col 4 [App Term, 1st Dept]); 400-408 v Holden, NYLJ, Oct. 26, 1990, pg 24 at 4 [App Term, 1st Dept].) Indeed, if a stipulation is unduly harsh and one sided and the parties may be returned to their former status, the court should exercise that discretion. (Solack v Goodman, 102 Misc 2d 504.) The appellate courts in this department have vacated stipulations when unrepresented tenants: agreed to vacate despite having a potential succession defense, (Knickerbocker v Doe, NYLJ, Jan. 5, 1994, at 21, col 2; Weehawken v Estate of Nudorg, NYLJ, March 26, 1991, at 21, col 3 [App Term, 1st Dept]); agreed to vacate in a nonpayment proceeding, unaware of eligibility for rent subsidies (Leeds v Granger, NYLJ, April 12, 1990, at 27, col 5 [App Term, 1st Dept]); failed to appreciate the alternatives to signing a stipulation, (Table Run Estate v Perez, NYLJ, Feb. 23, 1994, at 21, col 2 [App Term, 1st Dept]); and agreed to a judgment in a nonpayment proceeding in a stipulation which failed to address potentially meritorious defenses of warranty of habitability and rent overcharge (221 Sherman v Fulgencio, NYLJ, Oct. 29, 1996, at 26, col 1 [App Term, 1st Dept]).

Respondent was unrepresented when she signed the underlying stipulation based upon her answer consisting of a "general denial." Now, with the assistance of counsel, she has identified several potentially meritorious defenses. In support of her proposed warranty of habitability of defense, she produced a Building Registration Summary Report from the Dept. of Housing Preservation and Development showing 348 violations in the subject building of 49 units and alleges in her proposed amended answer that 15 conditions in her unit and/or the common areas of the building must be repaired. Also, she produced a register of Advantage payments listing $3,985.00 in rental assistance payments issued on her behalf, but never cashed. [*3]Respondent may not be evicted because the Human Resources Administration or the Department of Social Services sent rental payments to a receiver rather than an owner. (Waxenberg v Rivera, NYLJ, October 8, 1993, at 21, col 4 [App Term, 1st Dept].) Furthermore, the petition dated July 28, 2010, sought rent for the period of August 2009 through July 2010. Given this time period, respondent potentially presents unreasonable delay by the landlord to her prejudice as required to prove a laches defense. (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801 [2003].) Since delay is merely one element of the laches defense,^[FN2] and respondent's affidavit has not conclusively established this allegation, a trial would be necessary to evaluate its viability.

Given the applicable case law, respondent's unrepresented status when signing the

underlying stipulation and identification of potential meritorious defenses with assistance of counsel, this court wields discretion to vacate the December 14, 2010 stipulation. Respondent presents a further basis for vacatur regarding the insufficiency of the consideration granted to her for consenting to conversion of the proceeding from a nonpayment to a holdover. In the conversion stipulation, respondent agreed to relinquish a rent stabilized apartment and petitioner obtained a possessory judgment and warrant of eviction forthwith, as well as a monetary judgment for $9898.11—without a stay on execution-representing eighty-three percent (83%) of the rental arrears due, with a waiver of only $1981.72. This unequal bargain constitutes insufficient consideration. (Leeds v Granger, NYLJ, April 12, 1990, at 27, col 5 [App Term, 1st Dept].)

Based on the foregoing, respondent's motion is granted to the extent of vacating the December 14, 2010 stipulation, as well as the possessory and monetary judgments and warrant of eviction entered pursuant to its terms; granting respondent leave to serve and file an amended answer by April 30, 2011; and restoring the matter for trial on May 10, 2011, at 9:30 am in Part L, Room 450. The respondent is directed to serve and file a copy of this order with notice of entry by first class mail upon petitioner's counsel by April 25, 2011.

This constitutes the decision/ order of this court, copies of which are being mailed by the court to the parties.

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DateJudge, Housing Court