| Matter of New York City Hous. Auth. v Jackson |
| 2008 NY Slip Op 01764 [48 AD3d 818] |
| February 26, 2008 |
| Appellate Division, Second Department |
| In the Matter of New York City Housing Authority,Appellant, v Thomas Jackson, Respondent. |
—[*1] Nancy Botwinik, New York, N.Y., for respondent.
In a holdover proceeding, the petitioner appeals, by permission, from an order of theAppellate Term of the Supreme Court for the Second and Eleventh Judicial Districts datedNovember 17, 2006 [13 Misc 2d 141 (A), 2006 NY Slip Op 52265 (U)], which modified anorder of the Civil Court, Queens County (Katz, J.), entered January 27, 2005, by granting thatbranch of the motion of Thomas Jackson which was to vacate a stipulation of settlement datedMarch 26, 2001, the resulting judgment of possession entered March 26, 2001, and the resultingwarrant of eviction.
Ordered that the order dated November 17, 2006 is affirmed, with costs.
In this holdover proceeding, the Civil Court appointed a guardian ad litem for ThomasJackson, who resides in the public housing apartment that is the subject of this proceeding, upona finding that Jackson, who has a history of psychological disorders and borderline intellectualfunctioning, was incapable of adequately defending his rights. Two weeks later, the guardian adlitem entered into a stipulation of settlement providing for a judgment of possession in favor ofthe petitioner, the issuance of a warrant of eviction, and a six-month stay of execution of thewarrant. It is not discernible from this record whether there was any concrete plan in place at thetime to relocate Jackson. At some point in 2001, the New York City Department of SocialServices commenced a proceeding pursuant to Mental Hygiene Law article 81 for theappointment of a guardian of Jackson's person and property and, in October 2002, Self HelpCommunity Services, Inc. (hereinafter Self Help), was appointed guardian of Jackson's personand property.[*2]
Although the stay was subsequently lifted, the petitionernever sought to execute the warrant of eviction. Consequently, in June 2004, Jackson, throughSelf Help, moved in the Civil Court, inter alia, to vacate the stipulation of settlement as well asthe ensuing judgment and warrant of eviction, arguing that the guardian ad litem did notadequately protect his possible succession rights to the public housing apartment that is thesubject of the proceeding. The Civil Court denied the motion. On appeal, the Appellate Termmodified the order by granting that branch of Jackson's motion which was to vacate thestipulation of settlement and the resulting judgment of possession and warrant of eviction.
The Appellate Term providently exercised its discretion in granting that branch of themotion. Since both parties can be restored substantially to their former positions, good cause tovacate the stipulation was demonstrated, where, as here, it appears that a party has "inadvertently,unadvisably or improvidently entered into an agreement which will take the case out of the dueand ordinary course of proceeding in the action, and in so doing may work to his prejudice"(Matter of Frutiger, 29 NY2d 143, 150 [1971] [internal quotation marks omitted]; seeBML Realty Group v Samuels, 15 Misc 3d 30 [2007]; Genesis Holding, LLC v Watson,5 Misc 3d 127 [A], 2004 NY Slip Op 51218 [U] [2004]).
The petitioner's argument that laches bars the motion to vacate the stipulation is not properlybefore this Court as it was not raised before the Civil Court and was not addressed by theAppellate Term (see Woodlaurel, Inc. v Wittman, 199 AD2d 497 [1993]). Accordingly,we do not address the issue.
The petitioner's remaining contentions are without merit. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur.