Recitation, as required by CPLR section 2219(a), of the papers considered in the review of the submitted motions.Papers NumberedPetition and Notice of Petition 1Notice of Motion 2Affirmation in Opposition 3Affirmation in Reply 4DECISION/ORDER Upon the foregoing cited papers, the Decision/Order of this Motion is as follows:Petitioner Marcia Johnson commenced the instant summary holdover proceeding to recover possession of the subject premises, 100-43 205 Street, Second Floor Front, Hollis, New York. The pleadings allege that the subject premises is a legal two-family dwelling and that respondent Sean Bess remained in possession of the subject premises after the expiration of the Notice of Termination dated November 7, 2017.The instant proceeding first appeared on the court’s calendar on January 4, 2018. Respondent appeared but petitioner’s attorney was unable to appear due to a snow storm. Respondent was referred to legal counsel and the matter was adjourned to February 5, 2018. On February 5, 2018, respondent appeared pro se and the parties entered into a stipulation agreement. Petitioner was awarded a final judgment of possession, with issuance of the warrant to be forthwith and execution of the warrant to be stayed until March 14, 2018. On or about February 23, 2018 respondent retained an attorney. Both parties are represented by counsel.Respondent now moves this court to vacate the pro se stipulation agreement dated February 5, 2018, alleging that he improvidently waived his meritorious defenses and any rights he may have had as a rent stabilized tenant.It is well-settled law that court ordered stipulations are “essentially a contract and should not be lightly set aside”. 414 East 77 Realty LLC v. Bennett, 37 Misc.3d 138(A), 1, 964 N.Y.S.2d 59, 2012 WL 5992111 (N.Y.Supp. App. Term). See also Matter of Frutiger, 29 N.Y.2d 143, 272 N.E.2d 543 (1971); Solack Estates v. Goodman, 102 Misc.2d 504, 425 N.Y.S.2d 906 (1979); Cabbad v. Melendez, 81 A.D.2d 626, 438 N.Y.S.2d 120 (1981); Hallock v. State of NY, 64 N.Y.2d 224, 474 N.E.2d 1178 (1984). However, the court has discretion to relieve parties from a stipulation when good cause is present. Matter of Frutiger, supra at 49, citing to CPLR’ 5015(a). A court may find good cause to vacate a stipulation agreement if either 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.” Id. at 150. In 45-48 47th St. Corp. v. Murphy (45 Misc.3d 23, 993 N.Y.S.2d 866 [2014]), the Supreme Court, Appellate Term, Second Department, vacated a stipulation agreement after noting that appellant-tenant inadvertently waived certain rights provided by the Rent Stabilization Code, which constituted a potentially meritorious defense. Id. See also Northtown Roosevelt LLC v. Daniels, 35 Misc.3d 137(A), 951 N.Y.S.2d 87 (2012) (stipulation agreement vacated in summary holdover proceeding after court found that tenant improvidently waived possible meritorious defenses).In the instant matter, the court finds that respondent improvidently waived potentially meritorious defenses when he signed the February 5, 2018 stipulation agreement. Based upon the documentary evidence submitted by respondent, the court finds that respondent has established a colorable claim that the subject premises may be rent stabilized. If the subject premises is rent stabilized, then the predicate notice served by petitioner would be fatally defective to the instant proceeding. Accordingly, the February 5, 2018 stipulation agreement is hereby vacated.Respondent also moves this court to consolidate the instant action with another summary holdover proceeding, Marcia Johnson v. Zandriann Maye, et al, Index No. 80495/17, alleging that both cases have identical issues of fact and law.CPLR’ 602 allows for consolidation of actions at the discretion of the court when there are common questions of law and fact. Burger v. Long Island R. Co., 24 A.D.2d 509, 261 N.Y.S.2d 575 (1965); See also In re New York City Asbestos Litigation, 121 A.D.3d 230, 990 N.Y.S.2d 174 (2014) (consolidation of cases was warranted where there were common questions of law and fact); Alter v. Oppenheimer & Co. Inc., 8 Misc.3d 1008(A), 801 N.Y.S.2d 776 (2005) (while cases were not identical, consolidation was allowable because there were substantially similar facts and issues of law). The party opposing consolidation must show that a substantial right would be prejudiced by consolidating the actions. Amtorg Trading Corp. v. Broadway $ 56th St. Assoc., 191 A.D.2d 212, 213, 594 N.Y.S.2d 204 (1993). See also Pierce v. International Harvester Co., 65 A.D.2d 254, 411 N.Y.S.2d 456 (1978) (actions were consolidated because there were identical parties and issues with no substantial prejudice to the non-moving party).In the instant case, the issues of fact and law are sufficiently similar to warrant consolidation with Johnson v. Maye, Index No. 80495/17. Both respondents reside in the same subject building, are represented by the same attorney and are asserting the same defense against the same petitioner. Petitioner has failed to show that consolidation would be substantially prejudicial to any of her rights.Respondent further moves this court to dismiss the instant proceeding pursuant to CPLR’ 3212, because the predicate notice makes no reference to the regulatory status of the subject premises.CPLR’ 3212 provides that a movant may be entitled to summary judgment if they can demonstrate a prima facie showing for entitlement to judgment as a matter of law. See generally Davern v. City of New York, 287 A.D.2d 679, 732 N.Y.S.2d 180 (2001). Once the movant has established a prima facie case for entitlement to summary judgment, the burden shifts to the opponent to prove the existence of a triable issue of fact. Adam v. Cutner & Rathkopf, 238 A.D.2d 234, 239, 656 N.Y.S.2d 753 (1997) citing to Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). If there is a genuine issue of material fact, summary judgment must be denied. See Smalls v. AJI Industries, Inc., 10 N.Y.3d 733, 883 N.E. 350, 853 N.Y.S.2d 526 (2008); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E. 572, 508 N.Y.S.2d 923 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985).Here, respondent has not made a prima facie case for summary judgment. Respondent alleges that the subject premises contains six or more units and is therefore subject to rent stabilization. Respondent offers proof of five housing court cases, including the instant matter, commenced by petitioner. Each case concerns a different unit. Respondent has demonstrated that five units exist, but he has failed to conclusively prove through documentary evidence that there are six or more units in the subject building. Thus, summary judgment must be denied.Accordingly, respondent’s motion is granted solely to the extent of vacating the February 5, 2018 stipulation agreement and consolidating the instant matter with Johnson v. Maye, Index No. 80495/17.This matter is hereby adjourned to July 10, 2018 at 9:30 a.m., Part E, Room 404, for settlement or trial.The foregoing constitutes the decision and order of the court.Dated: Queens, New YorkJune 14, 2018
