Bishop v Icon Eng'g, PC

[*1] Bishop v Icon Eng'g, PC 2009 NY Slip Op 51784(U) [24 Misc 3d 1237(A)] Decided on August 12, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2009
Supreme Court, Kings County

Winfield E. Bishop and Beverly Marie Bishop, Plaintiffs,

against

Icon Engineering, PC and Gavin Squires, Defendants.



4028/08



For Plaintiff:

Steven Zalewski & Associates

125-10 Queens Blvd, Suite 218

Kew Gardens, NY 11415

(718) 263-6800

For Defendant:

Viscardi Basner & Bigelow

148-45 Hillside Avenue

Jamaica, NY 11435

(718) 297-1717

Francois A. Rivera, J.

By notice of motion dated November 5, 2008, plaintiffs Winfield E. Bishop and Beverly Marie Bishop jointly move this court for an order to enforce a stipulation of settlement (the stipulation) entered into between the plaintiffs and defendant Gavin Squires (Squires); and to restore the action to the calendar. Squires opposes that part of the motion seeking to enforce the stipulation. Defendant Icon Engineering, PC did not submit opposition to the motion.

BACKGROUND

On February 6, 2008, plaintiffs commenced the instant action against Squires and defendant Icon Engineering, PC (hereinafter Icon) by filing a summons and verified complaint with the Kings County Clerk's Office. The complaint contains twenty allegations of fact in support of three causes of action. Plaintiffs allege that they entered into a contract with the defendants for the performance of construction services upon a premise located at 510 Greene Avenue, Apt 2 in Brooklyn, New York (subject premise). [*2]They further allege that they fully paid all amounts due under the contract and the defendants failed to fully perform the construction work contemplated.

Icon has joined Issue with the plaintiffs by a verified answer dated January 18, 2008. Although Squires has opposed the motion, his opposition papers are silent on whether he answered plaintiff's complaint.

MOTION PAPERS

Plaintiffs' motion papers consists of an affirmation of their counsel and three annexed exhibits. Exhibit A is the stipulation of settlement signed by the plaintiffs and Squires on January 18, 2008. Exhibit B is the summons and complaint of the instant underlying action and affidavits of service of same upon the defendants. Exhibit C is the verified answer of defendant Icon.

Squire's opposition papers consist of his own affidavit, an affirmation of his counsel and three annexed exhibits. Exhibit A is a copy of same stipulation of settlement annexed to plaintiffs' motion papers. Exhibit B is a letter by Squires dated September 4, 2007, giving an estimate of the cost of the work to be performed on the subject premise off fifty-eight thousand dollars. Exhibit C consists of a copies of two checks from the plaintiffs payable to Squires and a bank statement. The first check, dated April 28, 2007, is in the amount of fifteen thousand dollars and the second check, dated May 21, 2007, is in the amount of five thousand dollars.

In reply to Squires' opposition papers, plaintiffs submitted an affirmation of their counsel and an affidavit of plaintiff Beverly Marie Bishop.

APPLICABLE LAW

CPLR § 2214 states in relevant part that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.

CPLR § Rule 3212(a) provides in pertinent part that any party may move for summary judgment in any action, after issue has been joined. CPLR § Rule 3212(b) provides in pertinent part that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.

CPLR § 2104 states in relevant part that 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. With respect to stipulations of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk. [*3]

CPLR § 5003-a (a) states in relevant part as follows:

When an action to recover damages has been settled, any settling defendant shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.

DISCUSSION

Plaintiffs' application to restore the matter to the active calendar is granted as unopposed. The motion papers demonstrate the following undisputed facts. In or about the spring of 2007, defendant Gavin Squires commenced work pursuant to an agreement in which plaintiffs agreed to pay certain monies in consideration of defendants' performance of certain construction upon the first floor and basement of plaintiffs' residence located at 510 Greene Avenue, Apt. 2, Brooklyn, NY 11216. The work contemplated on the first floor, including two bedrooms, the dining room, the bathroom, and the kitchen, was commenced, but not completed. No work was ever performed on the basement.

Contrary to the requirements of CPLR § 2214, plaintiffs do not set forth either the procedural rule utilized for bringing the motion or the substantive law supporting the relief requested. It is unclear whether plaintiffs are utilizing CPLR § 3212 to summarily dispose of the action or a merely seeking enforcement of the stipulation while they litigate the complaint and pursue other remedies.

Assuming that it is the former, summary judgment would not be available at this juncture because the motion would be either premature or improper. As already noted, the record is unclear as to whether issue has been joined with defendant Squires. If Squires has not answered the complaint, then issue has not been joined and the motion is premature (see Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725 [2nd Dept 2006]). "Since there is no indication in the record that issue had yet been joined, the Supreme Court was powerless to grant summary judgment on the complaint prior to joinder of issue (see CPLR 3212[a]), Union Turnpike Assoc., LLC v Getty Realty Corp., supra. " If Squires has answered the complaint, then the motion must be denied because plaintiffs have failed to annex Squires' answer to their motion (CPLR 3212[b]). A motion for summary judgment shall be supported by a copy of the pleadings (Matsyuk v Konkalipos, 35 AD3d 675, [2nd Dept 2006] citing Wider v. Heller, 24 AD3d 433 [2nd Dept 2005]).

On or about January 18, 2008, before the instant action was commenced, plaintiffs and Squires entered into the stipulation in which Squires agreed to pay the plaintiffs sixty thousand dollars in monthly installments of two thousand dollars, however, in the event that fifty thousand dollars was paid in a timely manner, the final ten thousand dollars would be waived. It is this stipulation which plaintiff seeks to enforce.

Plaintiffs contend in their reply that the stipulation of settlement should be [*4]enforced because Squires has failed to indicate any fraud, collusion, mistake or accident in entering into the stipulation of settlement. (In Re Frutiger's Estate, 29 NY2d 143, 150, [1971], citing Campbell v. Bussing, 274 AD 893, [2nd Dept 1948]). "But the stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature"(In Re Frutiger's Estate, supra.

In opposition, Squires requests that the stipulation of settlement be vacated by arguing that the court has "power to relieve from the terms thereof when the parties can be placed in status quo" and "as a general rule, exercises such power if it appears that the stipulation was entered into inadvisedly, or that it would be inequitable to hold the parties to it." (In Re Frutiger's Estate, supra).

Plaintiffs' arguments and Squires rebuttal presume that the court has the authority to enforce or vacate the stipulation by the instant motion. That assumption is incorrect. The only procedural vehicles available to enforce a stipulation of settlement by way of a motion are CPLR §§ 2104 and 5003-a. However, here, the stipulation was not entered into in the context of a pending litigation.

Pursuant to CPLR § 304, the instant action was not commenced until the subsequent filing of the summons and verified complaint on February 6, 2008. (See CPLR § 304; Sce v. Ach, 56 AD3d 457, 459. ("It is undisputed that the plaintiff commenced this action ..., the date when the summons and complaint was filed with the Clerk's office".

CPLR § 2104 refers to parties and matters in an action. Before the actual service of a summons there is no action, and the disputants have not yet become parties to one. The CPLR itself is intended to govern the procedure in civil judicial proceedings. Neither the CPLR in general, nor section 2104, in particular, have application to the conduct of prospective litigants before a proceeding commences." (State Farm Mut. Auto Ins. Co. v. Mamadou, 17 Misc 3d 600, 604, (NY Sup. Kings Co. 2007), citing Cohen v. Coleman, 110 Misc 2d 419, 422 [N.Y.Sup.Ct. Queens Co. 1981]). Furthermore, CPLR § 5003-a also refers to "an action" and cannot be invoked with regard to a settlement entered into before the filing of a complaint. (Mamadou, 17 Misc 3d 600, 605).

Accordingly, the court may not enforce the stipulation by the instant motion. Plaintiffs must pursue a plenary action to enforce the terms of the stipulation. Since the instant action is not premised on the stipulation but rather on the alleged breach of the construction contract, the court need not address Squire's arguments seeking to set aside the stipulation. Plaintiffs' motion is denied.

The foregoing constitutes the decision and order of this court.

__________________________xJ.S.C. [*5]