Wilhem v Palmeri
Annotate this CaseDecided on February 10, 2005
Supreme Court, Kings County
Zushe Wilhem, Plaintiff, -
against
Gilda Lock Palmeri AND HELEN LORICK, Defendants.
38119/02
Francois A. Rivera, J.
Defendants moves pursuant to CPLR§ 5015(a) to set aside an order of this court dated March 27, 2003 and pursuant to CPLR § 3212 to dismiss plaintiff's complaint. Defendant cross-moves for an order directing defendant's compliance with the contested order and other conditional relief.
On September 23, 2002, plaintiff commenced this action by filing a summons and complaint with the Kings County Clerk's office. On or about October 12, 2002, defendants counsel, Joseph K. LoBue, served plaintiff with a notice of appearance and defendant's answer. Plaintiff's sole cause of action is for specific performance of a real estate contract with the defendants.
The following facts are admitted by the parties. On October 27, 2001, plaintiff and defendants signed a contract of sale for the premises of 1422 President Street, Brooklyn, New York. Pursuant to the contract, plaintiff agreed to purchase the property for three hundred and ninety thousand dollars ($390,000.00) and provide a down payment of thirty nine thousand dollars ($39,000.00). Plaintiff was obligated to obtain within forty-five days, a mortgage commitment in the principal amount of three hundred and twelve thousand dollars ($312,000.00). The closing was scheduled to take place on February 13, 2002. Defendants' counsel, Joseph K. LoBue, signed the contract to acknowledged his receipt of the down payment. The closing did not take place.
On December 20, 2002, plaintiff moved for summary judgment on its cause of action for specific performance. On March 27, 2003, the motion was scheduled to be heard in Part 52 of this court. At that time, the parties consented in open court to an order granting plaintiff's motion for specific performance of the contract of sale and directing that the closing be held on or about May 1, 2003. This court issued such an order and plaintiff's counsel, Alexander T. Singer and defendants' counsel, Joseph K. LoBue, signed the order. [*2]
Defendants seeks to set aside this order claiming, among other things, that their attorney did not adequately represent them. Defendant Gilda Lorick Palmeri is the daughter of Helen Lorick and provided the affidavit in support of the instant motion. She contends that she and her mother do not have clear title to the property in question and cannot convey same. She also claims that her mother has been exploited by two predatory lenders, has suffered a stroke and has developed symptoms of senile dementia. Attached as an exhibit to the motion was a letter from a doctor in support of her claim that her mother had dementia. Defendant alleges that she fired her attorney, Joseph K. LoBue in part because he agreed to bind the defendants to specifically perform the sale with their consent. CPLR § 5015 (a) provides: Relief from judgment or order. (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry.
CPLR § 2104 provides in pertinent part: Stipulations. An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.
The primary issue is whether Joseph K. LoBue, defendants' prior counsel, may bind his clients without their consent. A stipulation of settlement made by counsel in open court may bind his clients even where it exceeds his actual authority (Hallock v. State 64 NY2d 224-229 [1984]). Stipulations of settlement are favored by the courts and not lightly cast aside; this is all the more so in the case of "open court" stipulations, where strict enforcement not only serves interest of efficient dispute resolution but also is essential to management of court calendars and integrity of litigation process ( Hallock v State, supra. 64 NY2d at 232).
Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. "Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable (Hallock v State, supra. 64 NY2d at 232). Here defendants prior counsel represented the defendants at the time they entered into the contract of sale with the plaintiff. It was clear then, that defendants represented to plaintiff that, Joseph K. LeBue, was their counsel. Thereafter, Mr. LeBue filed a notice of appearance and answered plaintiff's complaint. His appearance on the motion for summary judgment on March 27, 2003, was with the apparent and actual authority of the defendants. Plaintiff's reliance on the authority of defendants' counsel to bind them was reasonable. The defendants are therefore bound by the order of March 27, 2003, consented to by their prior counsel. [*3]
Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Hallock v State, supra., 64 NY2d at 231; see also In Re Davis 292 AD2d 452 [2nd Dept 2002]).
Defendants moving papers contain many conclusory allegations of fact offered in support of the application to vacate the order in question. The defendants claim that Helen Lorrick was exploited in 1996 and 1999 to fraudulently procure mortgages on the property by predatory lending institutions. Defendants offered no documentary support for this claim and failed to show its relevance to the real estate contract between the plaintiff and the defendants. The defendants claim that they have no ability to offer clear title to the premise in question. Once again, they offered no documentary evidence to support this contention. The claim of Helen Lorick's alleged dementia was not supported by an affirmation or affidavit of a health professional or by medical records. Nor did Gilda Lorick Palmeri explain her decision to enter into a contract with her mother and the plaintiff, while her mother allegedly suffered from dementia and while aware that she allegedly lacked clear title to the property. Defendants' pleadings raise more questions than it answers. Defendants pleadings, however, do not demonstrate fraud, collusion, mistake or accident sufficient to relieve them from the consequences of their stipulation (Hallock v. State supra 64 NY2d at 232). The validity of the stipulation resolves plaintiff's complaint and renders moot defendants' application for leave to amend their answer and to dismiss plaintiff's complaint.
Plaintiff's cross motion seeks to enforce the order in question and, if necessary, that a guardian be appointed for Helen Lorick or that a hearing be conducted to determine whether she requires a guardian. A party's competence is presumed and the party asserting incapacity bears the burden of proving incompetence (Feiden v. Feiden 151 AD2d 889 [3rd Dept 1989]). Persons suffering from a disease such as Alzheimer's are not presumed incompetent and may execute a valid deed (In Re Dolleck 11 AD3d 307 [1st Dept. 2004]). Furthermore, it must be shown that, because of the affliction, the person was incompetent at the time of the transaction (Feiden v. Feiden 151 AD2d 889 [3rd Dept 1989]). The pleadings are insufficient to raise an issue of fact regarding the capacity of Helen Lorick to enter into a real estate contract. Plaintiff's application is therefore denied as unsupported.
The foregoing constitutes the decision and order of the court.
______________________J.S.C.
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