Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion seeking an order vacating the May 16, 2011 stipulation between the parties, and for further relief:

PapersNumbered

Order to show cause and exhibits annexed1

Affirmation in opposition and exhibits annexedNone^[FN1]

Petitioner commenced this summary nonpayment proceeding in May 2011, alleging respondent owed $7,975.90 in rental arrears through May 2011 at a rate of $983.65 per month. Respondent interposed a general denial as well as an affirmative defense that the rent sought in [*2]the petition, or portion thereof, had already been paid.^[FN2] On May 16, 2011, the parties entered into a stipulation whereby respondent consented to a final judgment of possession in favor of the petitioner in the amount of $6,429.97. The stipulation provided the warrant of eviction would issue forthwith, with execution stayed through June 16, 2011 for payment. The stipulation contained the following language:

*L.L. is not receiving Work Advantage payments

*Resp. is to go to Work Advantage to change billing address.

Work Advantage is a rent subsidy program in which the Department of Homeless Services ("DHS") agreed to make rental payments on respondent's behalf. Apparently, according to the language of the stipulation, petitioner allegedly was not receiving those subsidy payments.

Respondent filed an order to show cause returnable June 30, 2011, seeking a stay of execution on the warrant of eviction. The parties entered into a stipulation of settlement on that date in which they agreed $8,147.27 was due and owing in rental arrears through June 30, 2011, with execution of the warrant stayed through July 30, 2011 for payment.^[FN3] The stipulation contained a clause stating, "upon any proof of payments not properly credited, proper credit to be given." The stipulation also noted the address to which payments should be sent, as well as the name and phone number of the social worker at DHS who handled respondent's Work Advantage account.

Respondent, now represented by counsel, moves to vacate the May 16, 2011 stipulation on several grounds. Respondent alleges her monthly rent for the period of January 2010 (when she moved into the unit from a homeless shelter) through January 31, 2011, was $962.83, not the $983.65 stated in the petition. Respondent contends DHS paid her monthly rent in full for the months of July 2010 through January 2011. Respondent argues petitioner improperly seeks rent that allegedly accrued prior to the date petitioner gained possession of the subject building in August 2010. Respondent further states petitioner seeks arrears for months in which DHS sent payments, and petitioner received, but credited to periods of time in which it did not own the subject building. Respondent declares the rent demand is inaccurate and the demand and petition seek rent for the period of September through December 2010 at a rent higher than that listed in the applicable lease.

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].) [*3]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]).

In this proceeding, respondent has retained counsel and now alleges a myriad of defenses, including an improper rent demand. In order to state and maintain a cause of action for nonpayment of rent, the rent demand and petition must "clearly inform the tenant of the particular period for which a rent payment is allegedly in default and the approximate good faith sum of rent assertedly due for each such period." (Schwartz v Weiss-Newell, 87 Misc 2d 558, 561 [Civ Ct, Bx County 1976].) In paragraph six of the petition, petitioner alleged respondent owed $6.70 for the month of September 2010 as well as the full monthly rent of $983.65 for the months of October 2010 through May 2011.^[FN4] Yet, in petitioner's own rent ledger, the landlord charged respondent $962.00 for the months of January 2010 through December 2010. The ledger also shows petitioner charged respondent $983.65 for the months of January 2011 through December 2011, yet granted her a preferential rent credit of $21.65 for each of those months—thus debiting her $962.00 per month. This supports respondent's allegation her rent is $962.00, not $983.65 as stated in the petition. The ledger also shows credits to respondent's account for payments in the amount of $962.00 on the following dates: July 2, 2010; August 11, 2010 (two payments); September 3, 2010; October 19, 2010; October 28, 2010; December 20, 2010; December 29, 2010; January 31, 2010. Thus, petitioner's rent ledger confirms it received the full monthly rent payment—or double that amount—for five of the months sought in the petition. The discrepancies between the rent ledger and the rent demand and petition undermine any claim the latter documents comprise a good faith sum of rent "assertedly due for each such period." (Schwartz v Weiss-Newell, 87 Misc 2d 558, 561 [Civ Ct, Bx County 1976].) A proper predicate rent demand is a condition precedent to commencement of a non-payment proceeding and cannot be amended nunc pro tunc. (Vartarian v Brady, 184 Misc 2d 333 [Civ Ct, NY County 1999] citing Chinatown Apts v Chu Cho Lam, 51 NY2d at 787). Thus, the petition fails [*4]to state a cause of action.

The court notes petitioner may contend it received the aforementioned DHS payments but merely applied those payments to earlier months that respondent failed to pay her rent. However, respondent has produced a copy of a deed for the subject premises obtained from ACRIS showing petitioner obtained ownership of the subject building on August 4, 2010. Petitioner has failed to produce an assignment of rents and leases indicating it has authority to collect rent arrears allegedly accrued before that date and thus, lacks the authority to apply payments received during the period of September 2010 through May 2011 (i.e., the months stated in the petition) to earlier time periods.

Based on the foregoing, without written opposition from petitioner, the court need not address respondent's other alleged grounds for dismissal; the motion is granted in its entirety; the underlying judgment and warrant are vacated and the petition is dismissed without prejudice.This constitutes the decision and order of this court.

_12/23/11______________________________

DateJOEL R. KULLAS

Judge, Housing Court