Zimmerman v West Nicholas Assoc. LLP.

[*1] Zimmerman v West Nicholas Assoc. LLP. 2015 NY Slip Op 51375(U) Decided on September 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
15-320/321

Brenda Zimmerman, Plaintiff-Appellant,

against

West Nicholas Associates LLP., Defendant-Respondent.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered October 10, 2014, which granted, on default, defendant's motion for summary judgment dismissing the complaint on the grounds of res judicata and collateral estoppel, and (2) an order of the same court (Gerald Lebovits, J.), entered April 22, 2015, which denied plaintiff's motion to vacate the aforesaid order and to restore the case to the calendar.

Per Curiam.

Order (Gerald Lebovits, J.), entered April 22, 2015, affirmed, without costs. Appeal from order (Jose A. Padilla, Jr., J.), entered October 10, 2014, dismissed, without costs, as nonappealable (see CPLR 5511).

Civil Court providently exercised its discretion in denying plaintiff's motion to vacate her default. Even assuming that plaintiff set forth a reasonable excuse for failing to respond to defendant's motion for summary judgment, plaintiff did not demonstrate the merits of her claim. The claim, as pleaded, sought to litigate a rent habitability "counterclaim [that] wasn't heard" in a prior summary proceeding between the parties. However, plaintiff is barred from litigating that counterclaim in this action because the counterclaim had been resolved pursuant to a January 28, 2015 stipulation executed in the prior proceeding, whereby plaintiff was granted a credit of $1,062.70 in settlement of "all claims, counterclaims and abatement claims" (see Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292 [2005]). To the extent the prior stipulation expressly left unresolved habitability claims for certain time periods, we note that the underlying claim does not relate to those periods (see Katz Park Ave. Corp. v Jagger, 46 AD3d 186, 191 [2007], affd 11 NY3d 314 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 25, 2015