Civil Court of the City of New York
Richmond County

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner,
against
_____ MACCARONE, et al., Respondents

Gerald Lebovits, J.H.C.

In the summer of 2001, tenant Kathy Bailey initiated an HP proceeding against Shakera Realty, the then-owner of 432 Jersey Street. The parties signed a consent order on August 9, 2001, in which respondent agreed to restore hot water to Bailey's apartment. The consent order left open the issue who was responsible for providing the gas that fueled Bailey's hot water. To answer that question, a hearing was held on September 27, 2001, before Judge Cyril K. Bedford. In a written opinion, Judge Bedford concluded that Bailey was responsible for providing her gas and dismissed tenant's petition, including the order directing respondent to provide her with hot water.

Co-respondent Department of Housing Preservation and Development (HPD) moved to reargue. Judge Bedford denied the motion on October 25, 2001. HPD filed a notice of appeal but never perfected its appeal.

At first HPD did not succeed, so it tried again. On October 31, 2001, HPD inspectors placed violations for lack of adequate hot water and for lack of adequate heat. HPD then initiated its own proceeding, returnable on December 6, 2001, against Lawrence Maccarone and the new corporate entity that owns 432 Jersey Street, NYJ Realty Holding Corp, of which Maccarone is an officer and his brother, Warren, is president. The Maccarones also owned NYJ Realty's predecessor, Shakera Realty. HPD sought orders directing respondents to provide heat and hot water for tenant Bailey and to impose civil penalties of $250 a day, for a total of $500 a day, for the heat and hot-water violations from October 31, 2001, the date of the posting. (See NYC Admin. Code §27-2115 [k] [1], [2].)

On December 6, 2001, respondents argued before Judge Bedford that they were not responsible for providing heat or hot water, both fueled by gas through Keyspan, because the court had already found that Bailey was responsible for her own gas. Judge Bedford refused to sign an order directing respondents to provide heat or hot water. (HPD's Aff. in Opp., Aug. 19, 2002, at 7, B 16.) Instead, Judge Bedford adjourned the matter to December 13, 2002.

On December 13, Judge Bedford again, based on his decision that Bailey was responsible for her gas, which fueled her heat and hot water, refused to order respondents to provide heat or hot water. He then adjourned the matter to December 20, 2001.

On December 20, 2001, with Bailey still without heat or hot water, respondents signed a consent order to provide heat and hot water. The consent order provided that a hearing on the question of imposing civil penalties would be adjourned to January 3, 2002.

The civil-penalty hearing began before this court on January 3. Because Bailey was still without heat or hot water-and also because this court was largely unaware of the history of the proceedings before Judge Bedford-the court signed HPD's order to show cause why respondents should not be held in civil and criminal contempt.

The civil-penalty hearing was adjourned to January 10 and again to January 16. Respondents provided heat and hot water between January 10 and January 16. Keyspan was owed some $10,000 by this time and had seized all three gas meters for the Jersey Street building-two for NYJ Realty's two tenants, one for the Maccarone brothers' bar downstairs. Respondents paid $8000 for a new boiler for hot water and bought space heaters to provide Bailey with electrical heat. On January 16, 2002, respondents, represented by counsel, signed a stipulation settling the civil-penalties and civil-and criminal-contempt issues by agreeing to pay a penalty of $8000, which respondents have since paid to HPD. The court signed the two-attorney stipulation without allocution. The order notes that by this point, HPD claimed that respondents' civil penalty could have been $26,500, of which HPD claimed that respondents owed $25,000 from October 31 to December 20, 2001. (HPD's Aff. in Opp., Aug. 19, 2002, at 9, B 21.)

From HPD's calculation, HPD claimed that respondents owed $1500 in civil penalties from December 20 onward, until they provided heat and hot water to Bailey. Respondents had argued that Bailey and Angela Duncan, the tenant in the other apartment in the subject building, had prevented respondents from gaining access to provide heat and hot water. (HPD's Aff. in Opp., Aug. 19, 2002, at 12, B 32.) But respondents settled on January 16, as HPD notes, after this court "recommended a settlement be made." (Id.)

HPD is correct. This court urged a settlement. But, as explained below, if it had properly understood Judge Bedford's rulings and that Bailey both caused the violations and prevented respondents from gaining access to resolve them, this court would never have urged a settlement. This opinion therefore represents the court's attempt to right a wrong in which it played a role by urging an unjust settlement.

The court learned a great deal about whether Bailey prevented access during the holdover proceeding between NYJ Realty and Bailey.

Despite its name, NYJ Realty, owned by the Maccarone brothers, is a small landlord. The Maccarones had two tenants, Bailey and Duncan, both tenants at 432 Jersey Street. NYJ Realty had a few problems with both tenants. When they moved into 432 Jersey Street under a Section 8 lease in January 1998, their apartments were in good condition and passed Section 8 inspection. The Maccarone brothers had equipped the apartments with new doors, floors, windows, and fresh paint. Later the apartments accumulated some 40 violations, which cost the Maccarones a good deal of money and effort to repair. The apartment failed a New York City Housing Authority (NYCHA) Section 8 inspection; the NYCHA Section 8 administrators stopped paying its share; Bailey and Duncan stopped paying their share of the rent in February 2001; the Section 8 leases expired; and NYJ Realty brought holdover proceedings against Duncan and Bailey in which they alleged that each owed more than $10,000 in use and occupancy.

Duncan, Bailey, and NYJ Realty entered into a stipulation on March 13, 2002, in which the tenants agreed to vacate by April 15. If they vacated timely, the landlord would waive all arrears and future use and occupancy, past, present, and future: $11,500 for Duncan, $12,679 for Bailey. Bailey did not move. Instead, now represented by The Legal Aid Society, she brought an order to show cause alleging that NYJ Realty committed fraud. According to Bailey, NYJ Realty induced the stipulation fraudulently because the NYCHA Section 8 administrators stopped paying its share of the rent after it determined that landlord caused the hazardous conditions in Bailey's apartment and that Bailey had an excellent abatement claim. NYJ Realty did not argue at that time that Bailey caused the damage and then failed to give NYJ Realty access to effect repairs. This court signed the order to show cause, vacated the stipulation in a written opinion, and set the matter for trial in May 2002.

The matter was settled after much testimony from Lawrence Maccarone and Bailey but before the holdover trial concluded. Before summations, the court pressed both sides to settle. NYJ Realty agreed to waive all its money claims against Bailey and to give her $4000 if she moved. The court told both sides that the inescapable conclusion from the testimony and exhibits was that Bailey destroyed the apartment so that she could get a Section 8 transfer voucher to move to Pennsylvania and that when the apartment failed inspection, she and Duncan denied access for the Maccarones to make repairs by boarding up doors with nails, by changing locks and adding a padlock, and by barring entry with pipes. Not merely Lawrence Maccarone testified to the myriad ways in which Bailey and Duncan prevented Maccarone and his superintendent from fixing the innumerable problems Bailey and Duncan caused. So did City Marshal Louis Giachetta, a man with 29 years' experience. Marshal Giachetta used a locksmith to open one door and then helped remove the padlock, the nails, and a 10-foot pipe that jammed a door entrance, all to execute the warrant against Duncan.

At one point Lawrence Maccarone called the police when it appeared to him that someone had broken into the basement. Bailey would not let the police or him inside. Bailey had complained to HPD about vermin in her apartment. When Lawrence Maccarone hired an exterminator, she refused to allow the exterminator to enter.

Bailey and Duncan had done everything they could to harm their apartments. Either or both went so far as to clog the sewer by flushing towels and tampons down a toilet. That caused a flood of sewage a few inches deep to cascade into the basement.

Bailey, for her part, admitted denying access by changing the locks, adding a padlock, driving in nails into a door from the inside, and placing the pipes. Her explanations for doing so-sometimes because the landlord was not making repairs to her satisfaction, sometimes to prevent trespassers from entering her apartment-were so unbelievable that they are rejected as a matter of law. Bailey allowed HPD's workers from its Emergency Repair Program into her apartment, but that cost landlord more money than it would have cost if landlord had done the work itself, work it was always prepared to do, even though Bailey caused the damage that required the work. Similarly outrageous were Bailey's statements that she did not systematically destroy her apartment and her opinion that Family Court, on application by the Administration for Children's Services (ACS), terminated her parental rights over five of her children-the sixth, not a minor, left home around the time Bailey was arrested for assaulting her-because, among other things, ACS found rust in her bathtub and water on her floor.

The Maccarone brothers were placed in financial straights by a tenant who, they contended, should have been given shelter at Riker's Island rather in their building on Staten Island. Concerned about a possible miscarriage, the court suggested that respondents move to vacate the January 16 stipulation with HPD.

Even with the court's sentiments laid bare, the Maccarones settled with Bailey by waiving all use and occupancy, exceeding $15,000, by giving tenant more time to move to Pennsylvania, and by offering her $4000 to move. They wanted to cut their losses, repair the apartment, secure honest tenants, and stop paying legal fees, including fees to handle possible, though meritless, orders to show cause and an appeal. A poignant moment at the holdover trial occurred when an exasperated Lawrence Maccarone offered to donate his building to the court, so unable was he to continue paying for repairs, fines, and lawyers without collecting rent, other than a monthly $46 public-assistance direct-vendor payment he never cashed, because doing so might have interfered with his remedy to commence a holdover. In other words, they settled a winning case in desperation-just like they settled their winning case against HPD, which was so hounding Lawrence Maccarone that he gave his private cellular telephone number to HPD to give to Bailey.

Bailey never received the $4000. She destroyed what was left of the apartment before she left, a kind of good-bye present. She settled for $1700-and she got that much only because she had excellent and determined Legal Aid Society counsel, who visited the apartment before she settled and saw for himself what Bailey had wrought. Bailey punched holes in the walls and shattered the toilet. For good measure, she painted the apartment with ketchup and mustard.

If Bailey is the sort to destroy her apartment when it was in her interest to leave it in broom-clean condition, as her holdover stipulation required, how much more was it in her interest to destroy the apartment and then refuse to allow repairs when she stood to gain a Section 8 travel voucher and money for civil-contempt damages, all while delaying an inevitable holdover proceeding?

The court signed Lawrence Maccarone and NYJ Realty's order to show cause to vacate the January 16 stipulation with HPD. Given HPD's opposition, the court promised to keep an open mind, a promise made necessary by the court's recommendation to respondents' counsel that it should move to vacate the stipulation. The court kept its promise. But at the hearing HPD moved into evidence the entire set of prior minutes, which HPD paid to transcribe and kindly gave to the court, and that sealed the fate of the motion and the underlying merits of HPD's claims.

On September 26, 2002, the court held a combined hearing on respondents' motion under CPLR 2218 to vacate the stipulation and on the merits of HPD's motion for civil penalties and for civil and criminal contempt. The parties asked the court to reserve decision on the motion to vacate the stipulation until the court heard all the evidence regarding the merits of the motion for civil penalties and for contempt. Were the evidence adduced at the May 2002 holdover proceeding not enough to vacate the stipulation, the September 26 hearing added more evidence. Lawrence Maccarone was the only witness. He testified credibly in every respect. He explained without contradiction that Bailey refused to let him some 18 of the 20 times he tried to gain access and that he was able to gain access to provide heat and hot water in January 2002 only when he arranged with others to cut down a door to the building.

Maccarone testified that he mailed two letters to HPD to complain that Bailey refused access. That testimony corroborated his May 29 holdover-trial testimony about a letter dated March 29, 2002, he sent by Federal Express to HPD, in which he documented Bailey's refusals to provide access.

Were this court to reject Maccarone's testimony in its entirety, the most respondents would be liable for in civil penalties would be $1500 for not providing heat and hot water from December 20, when respondents signed a consent order to give Bailey heat and hot water. HPD takes exception to Judge Bedford's rulings that Bailey was responsible for providing heat and hot water until December 20. Even if this court disagreed with Judge Bedford's decisions, it would still be collaterally bound by them as law of the case, because there is an identity of issues and parties between Judge Bedford's determination and the matter sub judice. (See generally Martin v. City of Cohoes, 37 NY2d 162 [1975] [providing that once an issue is judicially determined, that ends the matter for judges and courts of coordinate jurisdiction].) For a period HPD benefitted by the automatic-stay provision of CPLR 5519 (a) (1) once HPD filed its notice of appeal. But a CPLR 5519 "stay merely holds the parties to the status quo pending appeal. It prohibits either side, absent appellate action, from enforcing the court's order. However, the lower court order survives, until overturned, as the law of the case and remains binding until overturned." (DHPD v. Vanway Overland Express, 123 Misc 2d 372, 373 [Civ Ct, NY County 1984], cited with approval in Matter of Pokoik v. Dept. of Health Srvs., County of Suffolk, 220 AD2d 13, 15 [2d Dept 1996, per curiam].) Thus, while HPD's CPLR 5519 stay was effective, respondent Shakera Realty and its successor NYJ Realty could not enforce Judge Bedford's September 27 decision. But they could validly have sought its protection. (See e.g. DHPD v. Austern, 110 Misc 2d 389, 392 [Civ Ct, NY County 1981].) The Maccarones and NYJ Realty were entitled to rely on it.

In any event, this court has reviewed Judge Bedford's decisions and agrees with them all. HPD is wrong to hammer away at them incessantly, to the extent of saying a year later that it still plans to perfect its appeal and that they are so incorrect that this court should not be governed by them now. Judge Bedford found on September 27, 2001, that Bailey was responsible for paying her heat and hot water. That ruling ought surprise no objective person: Bailey herself in her tenant-initiated HP proceeding testified repeatedly that she was responsible to pay gas and that gas from Keyspan fueled her cooking, hot water, and heat. Bailey also testified that she had paid for her gas until Keyspan removed her meter. Even HPD agreed at the September 27, 2001, hearing that it would be satisfied if the Maccarones and NYJ Realty simply aided Bailey to get a gas meter, which Keyspan removed either because of Bailey's nonpayment of gas in this and her prior apartment, or because of an unclear shared-meter problem, or both. HPD conceded on September 27 that Bailey paid and would continue to pay the gas the fueled her stove, hot water, and heat if Keyspan would simply return her meter.

Given the record before him, no sober judge could have ruled differently from the way Judge Bedford ruled on September 27. That being so, it was improvident for respondents to agree to pay an $8000 penalty to settle a $26,500 case. In the worst-case scenario, respondents' entire exposure was $1500 from December 20, 2001, forward, when the parties consented to respondents' providing Bailey with heat and hot water.

Of that $1500 maximum, the court would have mitigated the civil penalty, if the parties had not settled, because technical difficulties with the Keyspan meter, which was in Bailey's name, prevented respondents from quickly providing heat and hot water. (See NYC Admin. Code §27-2115 [k] [3] [ii].) Having heard the evidence, this court would have mitigated the penalty by two-thirds, to $500-and that assumes that Bailey did not prevent respondents from gaining access to provide her with heat and hot water. Additionally, if this court were not bound by Judge Bedford's rulings-and it is bound-and respondents' exposure were $26,500 and not $1500, this court would have mitigated the civil penalty by two-thirds, to approximately $8000, for the same reason that technical difficulties with Keyspan hampered respondents' ability quickly to restore heat and hot water to Bailey $500. And this again assumes that Bailey did not prevent respondents from gaining access to provide her with heat and hot water.

But the court need not center its ruling around whether the maximum penalty could only have been $1500-or whether, because of technical difficulties with Keyspan, the penalty should be reduced to $500 or $8000. Respondents have proven that Bailey denied them access to provide heat or hot water, and respondents have credibly proven their affirmative, entire defense of lack of access not merely to a preponderance but beyond all human doubt. (See NYC Admin. Code §27-2115 [k] [3] [ii].)

HPD does not see it that way. HPD argues that respondents' affirmative defense must fail. According to HPD, the Maccarones refused to provide heat and hot water, not because Bailey refused access, but rather because respondents contended that they did not have to, as Bailey as responsible for the gas. In proof of that, HPD argues that respondents did not contend, in a verified answer or otherwise, that Bailey refused access but only that they were not required to give her heat or hot water. HPD further argues that Lawrence Maccarone invented his testimony during the May 2002 holdover trial and at this proceeding to vacate the January 2002 stipulation that a rider to the second Section 8 lease obliged Bailey to pay the heat and hot water. HPD additionally contends that respondents planned never provide heat and hot water because Keyspan removed the gas meters due to respondents' cheating by causing a shared-meter problem when respondents tapped into Bailey's meter-a theory HPD argued it could prove if Bailey were not in Pennsylvania-to pay for gas for their downstairs bar. That was why, according to HPD, an unpaid bill for some $10,000 required respondents to switch to electricity from gas to provide heat and hot water. HPD argues, moreover, that if respondents were able to provide heat and hot water to Bailey between January 10 and January 16, they should have been able to do so earlier.

Some of HPD's arguments support respondents' position, some are contradicted by the record, some are not proven on this record, and some are irrelevant.

First, HPD is wrong to contend that respondents have not argued that Bailey refused access. To the extent that respondents did not raise that affirmative defense in a verified answer to HPD's verified petition, HPD waived its right to demand one by not objecting on January 3, 2002. Respondents have been complaining since the inception of this case about Bailey's refusal to allow access. Respondents made this point on August 9, 2001, before Judge Ernest Cavallo. (Page 3.). And Lawrence Maccarone sent HPD two letters to this effect, one dated March 29, 2001. On August 16, 2001, before Judge Cavallo, respondents urged that a provision be included in a consent order to allow videotaping of access and repairs, but Bailey refused. It turns the world on its head for HPD to suggest that it was unaware that respondents have been contending that Bailey refused access.

Second, HPD is correct that respondents refused to provide heat and hot water from October 31 to December 20, but that is because on September 27, 2001, HPD argued, Bailey testified, and Judge Bedford ruled that Bailey was responsible for paying the gas that fueled Bailey's heat and hot water. No one can blame respondents for not providing heat and hot water when HPD itself conceded last year that Bailey was responsible for her gas. The moment, as HPD notes, that Judge Bedford expressed a view, on December 20, that Bailey should not go without heat and hot water regardless who is responsible for the gas, respondents signed a consent order binding them to that obligation. (HPD's Aff. in Opp., Aug. 29, 2002, at 8-9, B 19.) Thus, HPD's argument that respondents did not provide heat and hot water because they believed they did not have to do so bolsters, not harms, respondents' case.

Fourth, it is irrelevant whether respondents had a Section 8 lease order that absolved them from providing Bailey with heat and hot water. After all, Bailey herself testified on September 27, 2001, that she believed that she had to pay for her heat and hot water. The two Section 8 leases admitted into evidence provided, in a contradictory way, that tenant must pay for her gas but that landlord is responsible for heat and hat water-contradictory because on Staten Island Keyspan provides the gas for cooking, hot water, and heat, all of which Bailey pledged to pay. Lawrence Maccarone could not find the lease rider to which he referred, but the missing rider does not affect his credibility. He testified consistently on December 27, 2001, May 29, 2002, and September 26, 2002, that his Warren, his brother, often in the hospital suffering from kidney problems, took care of these matters. Thus, even if Lawrence Maccarone were wrong, it was fairly his impression that Bailey was responsible for her own heat and hot water. He was entitled to rely on Judge Bedford's rulings to that effect.

Sixth, on this record the court will never know who, if anyone, is responsible for the cheating, if any, associated with the meters. During its summation in this proceeding, HPD argued that if a Keyspan representative would testify, HPD could prove that respondents tapped into Bailey's meter. When the court offered to adjourn to allow HPD to call a representative from Keyspan to clear up this matter, HPD declined the invitation. Keyspan's records, admitted into evidence, do not provide an answer; on September 27, 2001, and September 26, 2002, respondents' counsel argued that the records prove that Bailey or Duncan tapped into one another's meters; on September 27, 2001, Warren Maccarone denied under oath that he tapped into Bailey's meter or that he knew anything about the subject, and HPD did not impeach that testimony when it cross-examined him; and Judge Bedford repeatedly stated on September 27, 2001, that he, like this court, cannot ascertain from Keyspan's records who, if anyone, tapped into a meter, but Judge Bedford's guess was that no one did, because Keyspan would not remove only one meter 'for a shared meter situation," (page 21), especially because Keyspan's records show consistently that it shut off Bailey's gas for non-payment. With so much doubt on the question, HPD's argument that respondents tapped into Bailey's meter to feed their bar must be labeled "not proven.'

Seventh, the court declines HPD's invitation to hold it against respondents that Bailey did not testify at the September 26, 2002, hearing. She testified on September 27, 2001, and during her May 2002 holdover trial. Neither Judge Bedford nor this court put stock in her testimony. Besides, it is fanciful to suggest, as HPD now does, that respondents waited until she moved before they brought this proceeding. It was this court, as all the parties know, that suggested that respondents move to vacate the January 2002 stipulation. Moreover, Bailey is hardly under respondents' control; a friend of respondents Bailey has never been. If anything, an adverse inference might be drawn against HPD for failing to call her-and also for failing to call Angela Duncan, whose reason for being absent HPD did not disclose. The court will impose no adverse inference against HPD, but the court can only imagine what Bailey would be thinking if she knew what mayhem she continues to inspire, how gullible she believes the justice system is, and how much her dishonesty continues to cost respondents in attorney fees and repairs.

Eighth, it might well be that respondents switched to electricity to provide heat and hot water to avoid a $10,000 gas bill. With a $10,000 bill from Keyspan in Bailey's name, none can blame them. But respondents nonetheless bought a new boiler for $8000, purchased four space heaters, and spent money and effort to cut down Bailey's door to comply with a December 20 consent order it perhaps never have had to enter into in the first place.

Ninth, the court rejects HPD position that if respondents could provide heat and hot water to Bailey between January 10 and January 16, they should have been able to do so earlier. To provide heat and hot water under their December 20 consent-order obligations, respondents were forced to cut down a door to their own building. The Housing Maintenance Code, part of the New York City Administrative Code, does not require respondents to go that far to satisfy their duties, and yet they did. The Housing Maintenance Code does not compel owners to dynamite their doorways to make fast repairs.

HPD's next argument is that respondents received bargained-for consideration. By offering the stipulation, HPD's reasoning goes, HPD "waived any claim to seek a thirty (30) day sentence against LARRY MACARONE or Officers of NYJ Realty Holding Corp." (HPD's Aff. in Opp., Aug. 19, 2002, at 12, B 33.) In bringing the criminal-contempt motion, HPD "was in fact seeking to have the Respondents [incarcerated] with a thirty day jail sentence as punishment." (HPD's Aff. in Opp., Aug. 19, 2002, at 14, B 41.) HPD had also sought an order adjudicating respondents in civil contempt, for which compensatory damages would have gone directly to Bailey, unlike civil penalties, which go only to HPD. It is less likely that a court on this record would send the Maccarones to jail or make them pay damages to Bailey than that re-appearing tomorrow for active duty will be Judge Joseph Force Crater. (Cf. Jones v. Natl. Distillers, 56 F Supp 2d 355, 356-357 & n 1 [SD NY 1999, Motley, J.]; People v. Knapp, 57 NY2d 161, 176 [1982, Meyer, J., concurring]; People v. Austin, 111 Cal App 3d 110, 119, 168 Cal Rptr 401, 406 [5th Dist 1980, Hopper, P.J., dissenting].)

HPD finally argues that the January 16, 2002, stipulation should be vacated because, it claims, respondents cannot point to fraud, collusion, mistake, accident, or error under Hallock v. State (64 NY2d 224 [1984].) The court respectfully disagrees.

On the one hand, it is unnecessary in this proceeding for respondents to prove fraud, collusion, mistake, accident, or error under Hallock. As the Court of Appeals held in 1928,

"The court unquestionably exercises a large control over all proceedings in an action so long as the action is pending and the parties can be restored to their original position. (Barry v. Mutual Life Ins. Co., 53 NY 536, and cases cited.) In the exercise of its discretion it relieves litigants from stipulations signed by counsel during the pendency of the case, on motion in the action, when such stipulations were either unadvisedly or inadvertently signed, or when the circumstances reveal that the stipulation should not be held, in order to promote justice and prevent wrong." (Yonkers Fur Dressing v. Royal Ins. Co., 247 NY 435, 445 [1928].)[1]

The holding in Yonkers applies here because the parties can return to their original position if the court were to vacate the stipulation, because respondents entered into their stipulation "unadvisedly or improvidently" and, separately, because the "circumstances reveal that the stipulation should not be held, in order to promote justice and prevent wrong." The Court of Appeals followed the Yonkers rule in the seminal Matter of Estate of Frutiger, albeit not in Hallock. In Frutiger, the Court held that a stipulation may be vacated in the court's discretion if it was "'unadvisably or improvidently entered into.'" (29 NY2d 143, 150 [1971], quoting Van Nuys v. Fitzworth, 10 NYS 507, 508 [Sup Ct, Gen Term, 5th Dept 1890] [so in the original Van Nuys: "unadvisedly.'].)

Tracing the development of the law explains why the Hallock Court did not use Frutiger's "unadvisedly" or "improvidently" standards in considering whether to vacate a stipulation of settlement. Courts may only use the "unadvisedly" or "improvidently" standards for stipulations entered into in open court when vacatur can restore the litigants to their original position, status quo ante. Thus, the Van Nuys court, adhered to by the Court of Appeals in Frutiger, held that courts may exercise "a wide discretion in relieving parties from such agreements, even though made upon sufficient consideration, if only both parties can be restored to the same condition as when the agreement was made. It is not necessary in such case to show fraud, deceit, or mutual mistake, overreaching, or undue influence." (10 NYS at 507-598].)

On the other hand, respondents have proven fraud, collusion, mistake, and error, although certainly none of these things were committed by HPD, which has behaved in the highest standards of a New York City agency dedicated to serving the public. For all that Bailey is, she did not have heat or hot water, and HPD fought doggedly to secure these essential services for her, even when she did her best not to help HPD help her. Where HPD and this court part company is not whether even the Baileys of the world are entitled to heat and hot water. They are, and the court is grateful for that protection, which benefits all New Yorkers. The parting of company, when you brush the foam off the beer, is simply about whether respondents should pay a penalty for Bailey's own failure, initially in causing her own lack of heat and hot water, later in preventing respondents from giving her heat and hot water.

Respondents may not be punished for Bailey's causing her own misery. It was Bailey, using HPD and this court, who, though deceit and malfeasance, pushed respondents into agreeing to pay a fine they should never have paid. Doubtless, a civil stipulation should not be vacated lightly. Neither should a quasi-criminal civil-penalties stipulation be enforced vacuously. Justice is more precious than finality.

In the end, the court is left with this: Knowing what it knows now, would it have so-ordered, let alone urged, respondents to settle for $8000 or even $8.00? To that, the answer is no. If a court lacks the power to vacate its judgment in a case like this one, it lacks the power in every case to do undo what can be undone. That is not, and cannot be, the law.

The stipulation of January 16, 2002, is vacated; HPD's motions for civil penalties and to hold respondents in civil and criminal contempt are denied; and all proceedings are dismissed with prejudice. HPD is directed to return the $8000 civil penalty to respondents, with interest from the date respondents paid the penalty.

This is the court's order and decision.

FN[1] The Court modified its 1928 decision in Yonkers years later, in Teitelbaum Holdings, Ltd v. Gold (48 NY2d 51 [1979]), but in a way helpful to respondents: "A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement." (Id. at 53.) Under Teitelbaum, a plenary action is not always necessary to vacate a stipulation of settlement. A litigant may move by order to show cause to vacate a stipulation, as respondents did here, even when a case otherwise appears concluded. (See Hallock, 64 NY2d at 229 n 1).

• Non-payments where the tenant has not paid rent;
• Holdovers where the landlord alleges the tenant has violated the terms of the lease or otherwise has done something which is prohibited, or is still in occupancy after a lawful lease termination;
• Housing Part Action or "HP Action," a case brought by the tenant asking the court to require the landlord to make repairs.

  These disputes are generally heard in New York City Housing Court which is part of the New York City Civil Court system. Some cases are heard in the full Civil Court and still others are brought in Supreme Court (which is really the name of a County Court and not the highest court in New York State.) Many factors determine where a case is commenced (and beyond the scope of this brief description), but include issues of jurisdiction, the amount of money sought as relief or whether discovery is desired.

  Some matters are considered Summary Proceedings (usually in Housing Court) and others are Actions. Each carries its own sets of rules. Supreme Court will also hear Article 78 Proceedings, a mechanism to challenge the decision of a city or state agency (such as DHCR).

Understanding the legal system anywhere is a tough job, but in New York it is especially complex. Many, but not all, cases are reported in the New York Law Journal, a weekday publication usually available in law offices and public libraries. Many other decisions go unreported and TenantNet invites readers to make submissions. Upon inquiry we will supply a fax number.

Certain Laws are brought up constantly in landlord/tenant cases. We can't mention every statute, but many are available online at TenantNet:

• Rent Regulation
  • New York City Rent Stabilization Law (RSL)
  • New York City Rent Stabilization Code (RSC) pursuant to the RSL
  • New York City Rent Control (ERCA)
  • Emergency Tenant Protection Act (ETPA)

• Covering both Regulated and Non-regulated apartments
  • New York State Real Property Law (RPL)
  • New York State Real Property Actions and Proceedings Law (RPAPL)
  • New York State Multiple Dwelling Law (MDL)
  • New York City Housing Maintenance Code
  • New York State Civil Practice Law and Rules (CPLR)