1230 Park Owners Corp. v Gwang Su Sin
Annotate this CaseDecided on April 27, 2006
Civil Court of the City of New York, New York County
1230 PARK OWNERS CORP., Petitioner(s)/Landlord(s),
against
GWANG SU SIN, Respondent(s)/Tenant.
L&T 087139/05
Attorneys for Petitioner:
LAPIDUS & ASSOCIATES, L.L.P.
By: Steven R. Lapidus, Esq., of counsel.
Attorneys for Respondent:
JOHN K. IDOUCHI, ESQ.
By: John K. Idouchi, Esq., of counsel.
Manuel J. Mendez, J.
Upon the foregoing cited papers, the Decision/Order on this Motion by Order to Show Cause is as follows:
The respondent/tenant has made a motion by Order to Show Cause to serve an Amended Answer and Counterclaim, subsequent to signing a Stipulation framing the issues for trial, for purposes of resolving all issues in this action in one proceeding. This Court denies the respondent's motion on the grounds that the Stipulation is binding, to allow the respondent to serve an amended Answer with Counterclaims
would result in substantial delay, and be prejudicial to the petitioner. Furthermore, the respondent is not precluded from commencing a plenary action subsequent to the summary trial, seeking the same relief currently sought to be obtained by the amended pleadings.
FACTUAL BACKGROUND
The respondent herein has indicated, pursuant to Stipulation entered into and signed by both parties on September 15, 2005, that the following pertinent paragraphs were agreed to:
3. The Tenant admits each and every allegation contained in the Petition
except the claim for CPI arrears and CPI charges which the Tenant
claims to have overpaid, and as such does not admit to being in default;
and
4. The only issue of fact to be decided by the Court is the Tenant's claims
with respect to CPI charges.
T
his Stipulation was annexed to both petitioner and respondent's papers as, Exhibit E. Subsequent to the Stipulation, on approximately November 9, 2005, the same day this matter was to be set down for a trial on the summary proceeding, respondent moved to have the case transferred to Supreme Court, New York County, by Order [*2]to Show Cause. The Order to Show Cause was returnable on or before November 17, 2005, and oral argument was heard by Hon. Joan Madden.
A decision was rendered on January 25, 2006, (see petitioner's Exhibit G), wherein Hon. Joan Madden, determined, upon review of the defendant/respondent's answer, although defenses were raised, none of them were equitable defenses. It was also determined, neither party had asserted an affirmative claim based upon the July 2004 letter allegedly used as an "estoppel certificate." Justice Joan Madden, specifically stated in the decision dated January 25, 2006 (see petitioner's Exhibit G), pursuant to, "the express terms of the stipulation the parties clearly intended the Civil Court to resolve issues related to miscalculation of CPI charges' and the interpretation of Section 62 of the lease," implicit in this statement is the parties
were bound by the terms of the Stipulation.
On November 9, 2005, the same day as the Order to Show Cause issuing a stay was signed, the petitioner obtained a judgement of non-payment on default. In the January 25, 2006 Order, respondent was granted leave to vacate the judgment, and the action was stayed for thirty days (see petitioner's Exhibit G). Respondent then moved to vacate the default judgement and obtained a Decision/Order from Judge Peter H. Moulton dated, March 14, 2006, granting that relief. Judge Moulton issued a further Order on April 4, 2006, setting this matter down for a trial on April 21, 2006, on the summary proceeding. Subsequently on April 10, 2006, the current Order Show Cause seeking to serve an Amended Answer and Counterclaims was prepared and made returnable on April 21, 2006. It would essentially incorporate a claim for, "an offset in the amount of the overpayments from April 2, 2002". Respondent has indicated that no prejudice to the petitioner would result from the requested changes, this Court disagrees.
LEGAL ANALYSIS
Pursuant to CPLR §3025 (b), a party may amend or supplement his pleading by leave of Court or Stipulation, which shall be, "freely given upon such terms as may be just including the granting of costs and continuances." Whether or not to grant or deny leave has been held to be a matter of judicial discretion to be determined on a case by case basis. (see, Fulford v. Baker Perkins, Inc., 100 AD2d 861, 474 N.Y.S.2d 114 (2nd Dept., 1984) ; Mayers v. D'Agostino, 58 NY2d 696, 458 NYS2d 904, 444 NE2d 1323). In determining whether leave should be granted, the Court needs to determine whether the application is absent prejudice or surprise to a party, [*3]or substantial delay. (see, Fulford v. Baker Perkins, 100 AD2d 861, supra ; Sean M. v City of New York, et al., 20 AD3d 146; 795 NYS2d 539
(1st Dept., 2005); and McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 NY2d 755, 463 NYS2d 434, 450 NE2d 1323).
Pursuant to CPLR §2104, an agreement between parties or their attorneys is not binding, unless, it is in a writing subscribed by him or his attorney. Parties to stipulations freely agreed to, make the law for any legal proceeding to which they are parties, and as such the Courts are bound to enforce the stipulations. (see Nishman v. DeMarco, 76 AD2d 360, 430 NYS2d 339, (2nd Dept., 1980). It has further been held, Courts pursuant to stipulation of the parties become circumscribed from relevant issues to the exclusion of disputed matters that might otherwise be available to the parties (see Deitsch Textiles v. New York Property Insurance Underwriting, 62 NY2d 999, 479 NYS2d 487, 468 NE2d 669). The Court is not free to reform stipulations to conform to what it thinks is proper once the parties have agreed to the terms and signed the stipulation (see Hoss Medical Services, P.C. v. Government Employees Insurance Company, 4 Misc 3d 521, 2004 NY Slip Op. 24213).
Upon review of all the papers in this motion the Court finds respondent had ample opportunity to move to serve an Amended Answer and Counterclaim prior to eve of summary trial. Respondent's failure to make this motion for approximately seven months after the Stipulation was signed, and at least two postponements of the summary trial, has resulted in unreasonable delay. As noted in petitioner's papers, respondent could have moved earlier to amend, including subsequent to the decision rendered, by Justice Madden, which fully discussed the missing assertions now sought to be added, or incorporated it into the motion to vacate the default judgment, decided on March 14, 2006, by Judge Moulton.
This delay vitiates CPLR §3025 (b). Freely allowing amendment under the circumstances will prejudice petitioner. Allowing the respondent to serve an Amended Answer and Counterclaim, more severely prejudices the petitioner, which brought a summary proceeding, in reliance on the terms of the stipulation prepared between the parties and signed by them on September 15, 2005. The respondent herein was aware of the basis for the counterclaim currently sought to be added when the Stipulation of September 15, 2005 was signed. Respondent did not attempt to negotiate the additional terms into the stipulation or subsequently seek to amend his pleadings, not even while seeking other relief through motion practice, until petitioner was prepared to proceed to trial. The Stipulation defined and limited the issues for trial, it would violate this Court's obligation pursuant to CPLR §2104 if [*4]additional remedies were incorporated that might otherwise be available to the parties absent the Stipulation.
Furthermore, the respondent would not be as substantially prejudiced under the circumstances, he is not precluded from commencing a separate plenary action subsequent to a determination in the summary proceeding, for the same relief sought in the amended pleadings. As indicated in the decision of January 25, 2006, neither the respondent nor the petitioner has asserted an affirmative claim based upon the July 2004 letter allegedly used as an "estoppel certificate." Any related issues may be brought in a separate proceeding.
Accordingly, for the foregoing stated reasons, this Court denies respondent's motion by Order to Show Cause. This matter is set down for a summary trial to pursuant to the terms of the September 15, 2005 Stipulation, and the Orders of the Hon. Peter Moulton. The parties shall appear at Civil Court, New York County, 111 Centre Street, Part 52, on May 15, 2006, at 9:30am for a trial of this matter.
The foregoing shall constitute the Decision and Order of the Court.
Dated:April 27, 2006
MANUEL J. MENDEZ
Judge, Civil Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
