Recitation, as required by CPLR 2219(a)Notice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits Annexed 0Answering Affidavits 2Replying Affidavits 3Exhibits 4Stipulations 0Other 0Decision and OrderPetitioner commenced this non-payment proceeding to recover possession of Apartment B9, located at 203-14 Hollis Avenue, St. Albans, New York (“apartment”). Respondent filed a pro se answer, and at the first Court appearance, on March 22, 2018, the then unrepresented respondent signed a Stipulation of Settlement which granted petitioner a final judgment of possession in the amount of $5,930.48 owed through March 2018, warrant to issue forthwith, with execution of the warrant stayed through May 7, 2018 for respondent to make the payment. Respondent receives LINC IV Rental Assistance and the petition pleads that the apartment is supportive housing pursuant to a Memorandum of Understanding with the Department of Mental Health and Hygiene.On May 14, 2018, through newly retained counsel, respondent moved via Order to Show Cause for an order appointing a Guardian Ad Litem (“GAL”) for respondent because respondent suffers from mental illness; to vacate the pro-se Stipulation of Settlement dated March 22, 2018; and ultimately to dismiss the petition for an improper rent demand. Respondent’s motion was adjourned to June 18, 2018 for opposition and reply papers, as well as for respondent to subpoena any checks issued on behalf of respondent by the New York City Human Resources Administration. Department of Social Services (“HRA/DSS”). On June 18, 2018, the motion was further adjourned to July 3, 2018 for petitioner to review copies of the checks issued by HRA/DSS. On July 3, 2018, Adult Protective Services (“APS”) informed the Court that respondent was accepted for participation with their agency. APS advised the Court that respondent is in need of their assistance because respondent suffers from mixed bipolar disorder and implosive control disorder, receives medication for these mental health conditions, and is receiving psychotherapy. At that time, on consent of all the parties including respondent, this Court granted that portion of respondent’s motion seeking appointment of a GAL and adjourned the balance of the motion to August 8, 2018 for the GAL to appear and for arguments.Therefore the only issues remaining for this Court are whether respondent should be relived from the Stipulation of Settlement returning the proceeding to trial posture, and if granted, whether this non-payment proceeding should be dismissed for failed to provide a proper rent demand.The Court of Appeals has long held that while stipulations of settlement are “favored by the courts and not lightly cast aside” they may be vacated where one can show “cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.” Hallock v. State of New York, N.Y.2d 224, 230 (1984). The court “possesses the discretionary power to relive parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it.” 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 (1987), lv to appl dism. 73 NY2d 868 (1989); quoting, In Re Frutiger, 29 NY2d 143, 50 (1971). Therefore, courts have control over stipulations and the power to relieve parties from the consequences of a stipulation made during litigation. In re Frutiger, 29 N.Y.2d 143 (1971); see also, Weissman v. Bondy & Schloss, 230 AD 2d 465 (1st Dep’t 2007), [court may vacate stipulations for unilateral mistake where failing to do so would result in unjust enrichment of the other party]; Weitz v. Murphy, 241 AD2d 547, 548 (2nd Dept 1997); quoting, Goldstein v. Goldsmith, 243 A.D. 268, 271, [held, "under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief"]; Genesis Holding, LLC v. Watson, et. al, 5 Misc.3d 127(A) (App. Term., 1st Dep’t. 2004) [stipulation properly vacated when tenant's son, who suffers from mental disability warranting appointment of a guardian ad litem, did not fully understand the significance of the stipulation]. Thus, “[v]acatur of a stipulation is appropriate when a party-especially one who appears without counsel-enters into an agreement improvidently, and, in so doing, forgoes defenses sufficient to defeat the proceeding.” Cashmere Realty Corp v. Hershi, NYLJ, December 28, 2005, at 19, col. 3 (Civ. Ct. Kings Co. 2005), citing Genesis Holding, LLC v. Watson, et. al, 5 Misc.3d 127(A) (App. Term., 1st Dep’t. 2004). These fundamental principles, coupled with respondent’s diagnosed mental illness and respondent’s affidavit stating he was uncertain whether he wanted to enter into the agreement in which he was not represented by counsel, require vacating the Stipulation.Having found that respondent is entitled to relief from the stipulation, the court now turns to respondent’s meritorious defense as to whether the predicate rent demand is defective warranting dismissal of this non-payment proceeding. Respondent argues that the rent demand is defective in that it does not reflect the payments made by public assistance on behalf of the respondent.A rent demand is a condition precedent to commencement of a summary nonpayment proceeding and as such cannot be amended. RPAPL §711(2) and §741(4); Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786, 787 (1980). Further, the predicate rent demand required by RPAPL §711(2) must clearly state the approximate good faith estimate of the sum allegedly due as well as the period for which the rent is demanded. 542 Holding Corp v. Prince Fashions. Inc., 46 A.D. 3d 309 (1st Dept 2007); see also, Dendy v. McAlpine, 27 Misc 3d 138A (App. Term 2nd Dep’t 2010).Here, while the rent demand dated January 23, 2018 asserts that respondent owes $1.54 for September 2017; $1,268.00 for October 2017; $1,268.00 for Nov 2017; $1,268.00 for December 2017; and $1,268.00 for January 2018, petitioner’s own rent ledger shows that petitioner received payments of $839.53 September 21, 2017, December 18, 2018 and January 16, 2018 via checks issued by HRA/DSS which checks were specifically designated for the specific months. Additionally, respondent shows that additional checks were issued on respondent’s behalf by DSS in October 2017 and November 2017 and cashed by the petitioner but were not reflected in the breakdown.Based on the above authority in that a proper rent demand is a not amendable condition precedent to a non-payment proceeding, and petitioner’s own rent records which reflect the payments made by respondent for the same period of time demanded in the rent demand and the petition, the court finds that the rent demand as plead by the petitioner did not contain a reasonable approximation of the rent due requiring dismissal of this proceeding.Accordingly, the stipulation of settlement dated March 22, 2018 is vacated and proceeding is dismissed without prejudice. This constitutes the decision order of this court.Dated: October 5, 2018Queens, New York
