Davy v Assongba

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[*1] Davy v Assongba 2009 NY Slip Op 52604(U) [26 Misc 3d 127(A)] Decided on December 15, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2008-2290 K C.

Haley H. Davy, Appellant,

against

Abake Assongba, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 16, 2008. The order denied plaintiff's motion for summary judgment.


ORDERED that the order is reversed without costs, plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment on the issue of liability and the matter is remitted to the Civil Court for a trial on the issue of damages solely relating to the amounts of rental arrears owed and damage sustained to the premises.

In a stipulation settling a prior nonpayment proceeding, the parties agreed that the proceeding would be converted to a holdover proceeding and that defendant would receive a waiver of all but $3,500 of the arrears (the total amount of which arrears was in dispute) if tenant made a $3,500 payment to plaintiff by certified check by February 15, 2005. The stipulation further provided that, upon a default, the waiver was void, and that time was of the essence (see 1029 Sixth v Riniv Corp., 9 AD3d 142 [2004]).

Claiming that defendant had failed to timely make the $3,500 payment in accordance with the terms of the stipulation, plaintiff commenced the instant action seeking to recover the principal sum of $8,750 for arrears due and owing pursuant to the month-to-month lease, and $1,615 for damage to the premises. Plaintiff thereafter moved for summary judgment. The Civil Court denied the motion on the ground that there were issues of fact as to whether defendant had timely complied with the stipulation settling the prior summary proceeding, and this appeal ensued.

In our view, plaintiff established in his moving papers that defendant had breached the stipulation by failing to make the required payment by certified check by February 15, 2005. Thus, plaintiff is not barred from seeking to recover the entire amount of arrears in this action. [*2]As the moving papers also established plaintiff's entitlement to judgment on the issue of liability, we reverse the Civil Court's order, grant plaintiff partial summary judgment on the issue of liability and remit the matter to the Civil Court for a trial on the issue of damages. We note that plaintiff is not entitled to recover attorney's fees since there was no agreement between the parties to pay such fees and there is no statute or court rule authorizing same applicable in this case (see Baker v Health Mgt. Sys., 98 NY2d 80 [2002]; New York City Hous. Auth. v Sinclair, 21 Misc 3d 133[A], 2008 NY Slip Op 52183[U] [App Term, 2d & 11th Jud Dists 2008]).

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009