Rosenberg & Estis, P.C. Successfully Denies Tenant’s Motion To Vacate, Filed After Two Breaches Of Stipulation

On Behalf of | Dec 5, 2019 | Press Releases

Landlord Awarded $191,000 for Tenant’s Failure to Strictly Comply with Stipulation of Settlement


For Immediate Release

Shea Communications, LLC
George Shea, Mark Faris (212) 627-5766

Rosenberg & Estis, P.C.‘s award-winning litigation team successfully secured a $191,000 judgment against a Tenant for his failure to strictly comply with the terms of stipulation of settlement before Hon. Kiyo A. Matsumoto of the United States District Court, Eastern District of New York, who also denied tenant’s subsequent motion to vacate the judgment.

Members Michael T. Carr and Adam J. Lindenbaum of Rosenberg & Estis, P.C. represented the Plaintiffs.

This case arose from a complaint filed by Plaintiffs (the former owner of the building and the current owner of the building, his trust), which alleged Tenant, for more than two years, fraudulently and strategically took advantage of the former owner, an elderly and infirm man. When the former owner’s sister discovered Tenant’s schemes, she encouraged her brother to transfer the building into a trust for his benefit and subsequently had the former owner moved to a care facility near her home out of state. The case was also commenced against other occupants of the same building, as Plaintiffs alleged their purported permission to reside therein arose through Tenant’s alleged wrongdoing; all of the unlawful occupants agreed to vacate the building shortly after the commencement of the action.

While this type of case would typically be filed in state court, R&E was able to file the complaint in federal court through diversity jurisdiction, due to the fact that at the time of filing the complaint, both Plaintiffs resided outside the State of New York, all named Defendants were residents of New York and the claimed damages were greater than the necessary threshold of $75,000. R&E’s strategy allowed Plaintiffs to avoid the typical delays and frustration often encountered by state court litigants.

Among other things, the complaint alleged that Tenant had: 1) impermissibly appointed himself as the former owner’s power of attorney; 2) fraudulently assigned himself the right to use the owner’s checking and credit card accounts for purchases including luxury goods, alcohol, and expensive meals; and 3) without authority assumed the management and leasing duties of the building.

On September 30, 2019, Plaintiff and Tenant entered into a court-ordered stipulation of settlement requiring tenant to vacate his apartment situated within the building on or before October 31, 2019 and to leave the apartment in vacant and broom-clean condition. In addition, Tenant was required to surrender to all keys to his apartment to Plaintiffs on such date and submit an executed surrender notice to Plaintiffs confirming his vacature of the apartment. The stipulation contained clauses construing any breach to be material and time being of the essence which was secured by a confession of judgment in the amount of $191,000, Plaintiffs’ agreed upon damages stemming from Tenant’s alleged conduct.

Instead of timely complying with his obligations under the stipulation, Tenant did not surrender the keys and provide the surrender notice until the following day, November 1, 2019. An inspection of Tenant’s apartment revealed that it was left in a sub-standard and unacceptable condition; tenant had left numerous items of furniture and miscellaneous refuse behind.

R&E, on behalf of Plaintiffs, notified Judge Matsumoto on November 4, 2019, that Tenant had breached the terms of the stipulation and moved for the filing and enforcement of the confession of judgment. The letter motion informed the court of Tenant’s failure to surrender the apartment “in strict compliance” with the stipulation and was supported by several photos depicting the state of the apartment, showing leftover furniture, garbage bags and kitchen supplies throughout, and the surrender notice signed by Tenant, dated November 1, 2019.

On November 5, 2019, Judge Matsumoto granted R&E’s motion and awarded Plaintiffs $191,000 pursuant to the terms of the stipulation; Tenant moved to vacate the award that same day. In her decision denying the motion to vacate, Judge Matsumoto found, “[Tenant] failed to deliver an executed Surrender Notice and the apartment keys to [Plaintiffs] on or before October 31, 2019, pursuant to the Stipulation” and “…the apartment was littered with garbage and other personal property throughout, as opposed to ‘in good and broom-clean condition…free and clear of all personal property.” Judge Matsumoto went on to find that due to these facts, Tenant had not “established any extraordinary circumstance under Rule 60(b)(6) by adequately demonstrating any ground justifying relief.”

“This is a great decision because we have a judge who, instead of reforming the contract or excusing the tenant’s wrongful behavior, ruled in accordance to the language of the court-ordered stipulation,” said Carr. “It’s an important victory for New York landlords and owners dealing with difficult tenants who fail to comply in situations like our clients.”