Deutsche Bank Natl. Trust Co. v Debonis

[*1] Deutsche Bank Natl. Trust Co. v Debonis 2009 NY Slip Op 50322(U) [22 Misc 3d 1128(A)] Decided on March 3, 2009 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 3, 2009
District Court of Nassau County, First District

Deutsche Bank National Trust Company, As Trustee, in Trust for the Registered Holders of Argent Securities Inc., Asset- Backed Pass-through Certificates, Series 2004-W10, Petitioner(s)

against

Michael Debonis, Karen Debonis, John Doe and Jane Doe, Respondent(s)



SP 3720/08



Law Office of Michael Aronow

Attorney for Respondents

53 Barkers Point Road

Sands Point, New York 11050

516-883-0167

Knuckles, Komosinski, Scutieri & Elliott, LLP

Attorneys for Petitioner

220 White Plains Road, 6th floor

Tarrytown, New York 10591

914-220-0155

Scott Fairgrieve, J.

Respondents move for an order staying all further proceeding including restraining the Nassau County Sheriff's Department from executing the warrant of eviction; vacating, voiding, and canceling the stipulation of settlement entered into by the parties on October 10, 2008; and restoring this matter to the calendar. Petitioner opposes this motion.

Petitioner acquired title to 251 Catherine Avenue, Franklin Square, New York by a referee's deed dated February 5, 2008. At the time of the foreclosure the respondents, Michael and Karen Debonis, along with two tenants resided at the premises. On July 2, 2008 the respondents were served with a 10 day notice to quit.The respondents failed to timely vacate and on July 30, 2008 they were served with a notice of petition and petition. [*2]

This action appeared on the calendar on August 6, 2008 but was adjourned several times on consent. On October 10, 2008 the parties, both of whom were represented by counsel, entered into a stipulation. Said stipulation provided: Respondents agree to vacate the premises on or before December 3, 2008. In the event that the respondents do not vacate the premises on or before December 3, 2008, a warrant shall be issued forthwith.

A stipulation of settlement entered into in open court has the binding effect of a contract (Furgano v. Epstein, 106 AD2d 609, 483 NYS2d 103 [2d Dept 1984]). It is well settled that a stipulation of settlement will not be set aside unless there is a cause sufficient to invalidate a contract such as, fraud, collusion, mistake or accident (Hallack v. State of New York, 64 NY2d 224, 485 NYS2d 510 [1984]; Katz v. Village of Southampton, 244 AD2d 461, 664 NYS2d 457 [2d Dept 1997]).

The respondents maintain that their motion should be granted and the stipulation of settlement voided because the stipulation was at all times predicated upon a third party purchasing the premises and there is good cause for staying the eviction and voiding the stipulation, pursuant to RPAPL § 749. They contend that the petitioner verbally agreed to sell the premises to one or more of the buyers proposed by the respondents. It is alleged that said buyers would allow the respondents to remain as occupants of 251 Catherine Avenue. However, this provision was not included in the stipulation nor was a contract of sale ever signed by one of the proposed buyers.

Upon review of the papers before it the Court finds that the language of the stipulation of settlement is clear and that respondents' contention that it should be vacated based upon a collateral oral agreement is inconsistent with its terms and barred by the parol evidence rule. Said rule forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that at or before the signing of the written paper other, further, or different terms were orally agreed upon (Piretti v. Firestone tire & Rubber Co., 120 NYS 782, NY Sup 1910 [App Term 1910]). In Rasch's Landlord & Tenant, the parol evidence rule is described as follows: The rules governing the admissability of parol or extrinsic evidence to affect writings, apply to leases. The general rule, variously stated, is that in the absence of fraud or mistake, conversations, negotiations, and agreements made by the parties either prior to or contemporaneously with the execution of a written lease are considered as having been merged in the final written instrument, and that, therefore, parol or extrinsic evidence in relation to such conversations, negotiations, and antecedent or contemporaneous agreements cannot be admitted in evidence for the purpose of attempting to vary or contradict an unambiguous written lease.

§ 6.14 Parol Evidence Rule: Generally, at 283-84, 4th ed. [1998]. Similarly, the New York Court of Appeals has applied the parol evidence rule to bar oral agreements when inconsistent with a [*3]written agreement. Piercy v. Citibank, 101 Misc 2d 302, 424 NYS2d 76 [Spec Term 1978], aff'd 67 AD2d 842, 412 NYS2d 789 [1st Dept 1979], aff'd 48 NY2d 900, 424 NYS2d 897 [1979]. This Court's decision is consistent with that view.

A stipulation's enforcement remains subject to the supervision of the courts (Malvin v. Schwartz, 65 AD2d 769, 409 NYS2d 787 [2d Dept 1978], aff'd 48 NY2d 693, 422 NYS2d 894 [1979]). In addition, RPAPL § 749(3) grants the Court power to vacate a warrant for good cause shown (see also 401 Commercial L.P. v. JOG, LLC, 18 Misc 3d 1130(A), 859 NYS2d 894 [Civ Ct, New York County 2008]). However, in the instant action the respondent's allegations of fraud in the inducement are insufficient. Respondents' counsel has included copies of pre-approval letters for potential buyers, Yolanda Sruart and Calvin Chen. Said letters predate the signing of the stipulation. The mortgage loan commitment for the third potential buyer, Oswald Job, was dated October 9, 2008. The respondents, represented by counsel on October 10, 2008, had the opportunity to include a provision which would subject the sale of the property to a third person. They failed to do so.

Respondents' motion is denied. Petitioner may proceed with the eviction after March 31, 2009.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated: March 3, 2009

CC:

Law Office of Michael Aronow

Knuckles, Komosinski, Scutieri & Elliott, LLP