Henry v Almanacid

[*1] Henry v Almanacid 2006 NY Slip Op 51878(U) [13 Misc 3d 132(A)] Decided on October 2, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1702 W C.

Maurice Henry, Appellant,

against

Germain Almanacid and MALPARTIDA CHANDLER, Respondents, -and- JOSE A. HIDALGO, Non-Party Respondent.

Appeal from an order of the Justice Court of the Town of Mount Kisco, Westchester County (Mark Farrell, J.), dated September 2, 2005. The order denied landlord's motion to add Jose A. Hidalgo as a respondent and for the entry of a money judgment against all the respondents in the sum of $1,646.10.

Order affirmed without costs.

In this commercial holdover proceeding based on the expiration of tenants' lease on April 30, 2005, the parties, represented by attorneys, entered into a stipulation of settlement in open court on May 12, 2005. The stipulation provided that landlord would be awarded a final judgment of possession and that execution of the warrant would be stayed until May 31, 2005 so long as tenants paid landlord use and occupancy for the month of May 2005, at the rate previously payable as rent, by May 13, 2005. A final judgment was entered pursuant to the stipulation, and a warrant issued, with execution thereof stayed until May 31, 2005.

Thereafter, landlord moved, at the end of June 2005, to add a party respondent and for the entry of a money judgment against all respondents in the sum of $1,646.10, representing [*2]attorney's fees and damages arising from tenant's wrongful holding over, including the difference between what tenants had paid for May 2005 pursuant to the stipulation and what landlord would have received from its incoming tenant for May 2005, as well as the cost of providing alternate space for the incoming tenant. The court below denied landlord's application on the ground that the proceeding had concluded with the execution of the stipulation and entry of the final judgment. We agree with this result and affirm.

In the circumstances presented, the parties "unequivocally terminated their lawsuit" when a final judgment was entered in accordance with the terms of the stipulation of settlement (Teitelbaum Holdings v Gold, 48 NY2d 51, 56 [1974]; see Matter of Village of Greenwood Lake v Mountain Lake Estates, 189 AD2d 987 [1993]). Because the proceeding was no longer pending, landlord's motion to add a respondent and for entry of a money judgment against all respondents was properly denied (see Johnson v Hunte, 8 Misc 3d 133[A], 2005 NY Slip Op 51160[U] [App Term, 2d & 11th Jud Dists]; Colony Manor Assoc. v Triggs, NYLJ, June 15, 2001 [App Term, 2d & 11th Jud Dists]; Citibank, N.A. v Schorr, NYLJ, Apr. 29, 1997 [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, we do not reach the merits of landlord's application.
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: October 02, 2006