Wiener v Spahn

Wiener v Spahn 2015 NY Slip Op 02005 Decided on March 12, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 12, 2015
Mazzarelli, J.P., Andrias, Saxe, Feinman, Clark, JJ.
23962/06 14508 2451/05 1 2 3 14507

[*1] Edith Wiener, an individual partner of Absar Realty Company, 24440/13e Plaintiff,Action No. —

v

Laura Spahn, Defendant-Respondent, 3900 Greystone Associates LLC, Defendant-Appellant. Edith Wiener, an individual partner of Absar-Gerard Associations, Plaintiff, Action No. -against- Laura Spahn, Defendant-Respondent, Chaim Schweid, Defendant-Appellant.



Chaim Schweid, et al., Plaintiffs-Respondents, Action No. Chicago Title Insurance Company, Plaintiff, -against-

v

Laura Spahn, Defendant-Appellant.

Heller Horowitz & Feit, PC, New York (Stuart A. Blander of counsel), for 3900 Greystone Associates LLC and Chaim Schweid, appellants/respondents.

Anderson & Ochs LLP, New York (Mitchell H. Ochs of counsel), for Laura Spahn, respondent/appellant.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about August 21, 2013, which, in Action Nos. 1 and 2, granted defendant Laura Spahn's motion to resettle a prior settled order to the extent of directing the deletion of the provision in the prior order that required Spahn to return to defendants Chaim Schweid and 3900 Greystone Associates LLC the purchase prices paid for interests in Spahn's property after the sales were set aside by the court, unanimously affirmed, without costs. Order, same court, (John A. Barone, J.), entered July 24, 2014, which, in Action No. 3, denied the motion of defendant Spahn to dismiss the [*2]complaint, unanimously affirmed, without costs.

In Action Nos. 1 and 2, the court properly granted the motion for resettlement to rectify the discrepancy between the court's decision after trial and the prior settled order (see Ansonia Assoc. v Ansonia Tenants Coalition , 171 AD2d 411 [1st Dept 1991]). The inclusion of a provision in the settled order for the return of the sales price to the purchasers, defendants Schweid and Greystone, went beyond the court's award.

The court properly denied Spahn's motion to dismiss the complaint in Action No. 3. Spahn failed to establish, at this stage of the proceedings, that plaintiffs were barred by the subject agreements from seeking the return of their purchase prices.

We have considered the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 12, 2015

CLERK