Citi Dev. & Mgt., Inc. v Tirado (2007 NY Slip Op 50938(U))

Citi Dev. & Mgt., Inc. v Tirado

2007 NY Slip Op 50938(U) [15 Misc 3d 138(A)]

Decided on May 7, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Citi Development and Management, Inc., Respondent,

against

Olga Tirado, Appellant, -and- "John Doe" and "Jane Doe", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Timmie E. Elsner, J.), dated October 27, 2005. The order, insofar as appealed from as limited by the brief, denied occupant's motion to set aside a stipulation and the final judgment entered pursuant thereto.

In this proceeding by a purchaser in foreclosure, occupant showed no adequate basis, such as fraud, overreaching, mistake or duress, to set aside the stipulation in which she agreed to surrender her apartment in return for a payment of $7,000 (see Hallock v State of New York, 64 NY2d 224, 230 [1984]). Occupant's claim that landlord did not have standing to maintain this proceeding because he was no longer the owner of the building at the time the proceeding was commenced did not involve the subject matter jurisdiction of the court and was waived by her entry into the stipulation (see Daley v Billinghurst, 5 Misc 3d 138[A], 2004 NY Slip Op 51621[U] [App Term, 2d & 11th Jud Dists]). Her claim that she is rent stabilized by virtue of an alleged illegal conversion of the building from a four-family to a six-family was expressly waived in the stipulation, and this waiver is valid since occupant had not been established as a rent-stabilized tenant at the time that she entered into the stipulation and the stipulation resolved a bona fide dispute as to whether the apartment became rent stabilized (see e.g. Kent v Bedford Apts. Co., 237 AD2d 140 [1997]; Arkansas Leas. Co. v Gabriel, 3 Misc [*2]3d 46 [App Term, 2d & 11th Jud Dists 2004]; 437 Palisade Ave. Realty Corp. v Boyd, 124 Misc 2d 759 [App Term, 9th & 10th Jud Dists 1984]; 142 Fulton LLC v Hyatt, 14 Misc 3d 1223[A], 2007 NY Slip Op 50133[U] [Sup Ct, NY County, Edward H. Lehner, J.]; see also Matter of Matinzi v Joy, 60 NY2d 835 [1983]; cf. Georgia Props., Inc. v Dalsimer, ____ AD3d ____, 2007 NY Slip Op 03184 [a so-ordered stipulation in which the parties agreed to permanently deregulate a rent-stabilized apartment was void as against public policy]; Drucker v Mauro, 30 AD3d 37 [2006] [an agreement which has the effect of deregulating a rent-stabilized apartment is void as against public policy]).