The underlying holdover proceeding was settled by way of an agreement (dated July 31, 2006) which provided that the tenant would "not permit his dogs to defecate or urinate in the [apartment or common areas of the building] and/or if same occurs shall promptly [and] properly clean so as to avoid issuance of any odor. If [tenant] or any authorized individual is in [the apartment] said clean-up to be done immediately."
For a period of two years, any breach by the tenant was to be treated with "zero tolerance" and would result in the issuance of a warrant of eviction on as little as five days' notice.
As luck would have it, about a month later (August 22, 2006), one of the tenant's Afghans defecated on the unit's hallway floor and there the deposit remained for about a three week period - until the tenant returned from a Caribbean vacation.
When the cooperative alleged breach and sought to evict the tenant for his noncompliance with the parties' agreement, the New York County Civil Court concluded that the tenant had not seen the "accident" occur (as he had been leaving for a vacation) and removed the pile upon his return -- thus satisfying the "immediate" clean-up requirement.
On appeal, the Appellate Term, First Department, reversed.
The AT1 didn't buy the tenant's "professed unawareness of the dog's mess," since it had been "conspicuously deposited immediately outside tenant's bedroom." Undeniably, the tenant's "ignorance defense" didn't pass the smell test:
In evaluating tenant's breach using the "zero tolerance" standard formulated by the parties, it is not unreasonable to charge tenant with knowledge of what he ought to have discovered through the ordinary use of his senses.
The appellate court also expressed concern (as had been cited in an earlier Appellate Division decision) for the sanctity of the contractual arrangements reached in Housing Court, and noted that owners would be discouraged from amicably resolving disputes if settlements were dishonored and unenforced by our courts.*
The Appellate Term, 2nd and 11th Judicial Districts, didn't share that sentiment in 600 Hylan Associates v. Polshak . In that case, Ilonka Polshak sought to vacate a money judgment and a possessory judgment which she had agreed to in a nonpayment case. While she initially stipulated to owing some $11,000 in "back rent, costs and fees," she later retained counsel and sought to be relieved of her obligations under that agreement, claiming to have "inadvisably" waived certain defenses to the landlord's claim.
Since her motion failed to cite any of the typical factors -- fraud, collusion, accident or mistake --which would have triggered an entitlement to relief, the Richmond County Civil Country denied the request. On appeal, the AT2 reversed.
Since the tenant had "made it clear" she was unable to remit payment of the monies sought to be recovered without assistance from the Department of Social Services, and, in view of the possibility that the landlord may have waited too long -- i.e., two years -- to bring the nonpayment case, the AT2 was of the opinion that the tenant had made "a sufficient showing of prejudice arising from landlord's delay" in filing its lawsuit.
Having demonstrated a "meritorious and substantial laches defense," the AT2 rescinded the parties' agreement and restored them to the status quo ante - so that there could be a full and complete trial on the parties' respective claims.
A lone dissenter, Justice Michelle Patterson, did not agree with the appeal's outcome and noted as follows:
[T]he record shows that the tenant entered into the stipulation freely and knowingly in open court and that the amount agreed to was in fact owed. To unravel a stipulation of settlement under these circumstances would have a chilling effect upon future litigants entering into such settlements and, indeed, would render them meaningless. While the Court is sympathetic to this self-representing litigant, it must be mindful of its role to administer justice fairly and evenly and cannot ignore the basic tenets of the law.
This much is certain, folks: There are no absolutes in landlord-tenant law.
And, that's no crock.
To view the Appellate Term decisions, please use these links: 565 Tenant's Corp. v. Adams or 600 Hylan Associates v. Polshak
To view a copy of the Civil Court's Decision/Order in the Adams case, please use this link: 656 Tenant's Corp. v Adams (Civil)
To view our related posts on this topic, please use this link: Stipulations
--------------------------
*We understand that the tenant's attorney is seeking leave to appeal to the Appellate Division, First Department. (Unfortunately, we do not hold out much hope for that application being granted.)