inadvertently or inadvisedly entered into an agreement which will take the case out of the
due and ordinary course of proceeding in the action, and in doing so may work to that
party's prejudice (BML Realty Group v Samuels 833 NYS2d 348).
Here Respondent's agreement to a new judgement and warrant after she timely
satisfied the terms of Judge Black's November 5, 2015 decision and order continued the
proceeding when the case should have ended based on the timely compliance with the
court's last order. The $6000 of the judgment that was for legal fees, had been sought by
Petitioner in an identical motion before Judge Black and no relief had been granted by
the court. While Petitioner may be entitled to move to renew or reargue Judge Black's
decision, they can not just bring the identical motion again.
Additionally, the initial stipulation of settlement in this proceeding settled
Petitioner's claim for attorney's fees and the judgment entered pursuant to that stipulation
included $1000.00 in attorneys' fees. There was no reservation in the initial stipulation
for Petitioner to seek additional fees on default, therefore the claim to additional fees
incurred in this proceeding was waived (Rosewohl Enterprises, LLC v Gluck 847
NYS2d 898; 167-169 Allen Street HDFC v Franklin 957 NYS2d 637).
Additionally, Petitioner's own breakdown does not show $6000 in legal fees due as of
January 2016, most of that appears to have first been billed to Respondent in March
2016.
Respondent who secured a one shot deal to pay the amount ordered by the court
would be severely prejudiced and likely subject to eviction if the judgment and warrant
pursuant to the January 2016 were to stand.
The proceeding is dismissed with prejudice as to all claims for rent and additional