Staltieri v Clemente

[*1] Staltieri v Clemente 2012 NY Slip Op 50116(U) Decided on January 17, 2012 Civil Court Of The City Of New York, Queens County Velasquez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2012
Civil Court of the City of New York, Queens County

Domenico Staltieri and DALE BLOOM, Plaintiffs,

against

Thomas Clemente, Defendant.



004922/09

Carmen R. Velasquez, J.

Papers Submitted to Special Term on November 29, 2011

Recitation, as required by CPLR §2219 (a), of thepapers considered in the review of this Motion

Papers Numbered

Notice of Motion and Affidavits Annexed ..1Answering Affidavits ..2 __Replying Affidavits .3

DECISION/ORDER

Upon the foregoing cited papers, the decision and order on this motion by the defendant for an Order dismissing this action pursuant to CPLR § 3211 (a) (1), is as follows:

In this action, plaintiffs, Domenico Staltieri and Dale Bloom, seek to recover rent payments made by them to the defendant, Thomas Clemente. The complaint alleges that the apartment occupied by the plaintiffs, for which the rent payments were made, was substandard and illegal. It also states that this claim was previously raised in a counterclaim interposed by the plaintiffs in an eviction action commenced against them by the defendant, Thomas Clemente, in Civil Court, Queens County. That action was settled by a stipulation of the parties that was "So Ordered" by the Court. The plaintiffs, Domenico Staltieri and Dale Bloom, claim that the stipulation did not address their counterclaim.

The stipulation of settlement in the prior eviction action stated that the parties agreed to the stipulation "in settlement of the issues in this matter." Those issues included the counterclaim interposed in that action by the tenants, Domenico Staltieri and Dale Bloom, unless the right to pursue the counterclaim was expressly preserved (see Adelstein v City of New York, 188 AD2d 442 and 188 AD2d 443; Maidman v Mayflower Doughnut Corp., 5 Misc 2d 148).However, while the stipulation explicitly reserved the landlord's right to "make proper application for use and occupancy and rent arrears in the event the tenant did not vacate on the [*2]agreed date", there was no provision preserving the right of the tenants, Domenico Staltieri and Dale Bloom, with respect to the claims made in the counterclaim. Therefore, the stipulation of settlement in the earlier eviction action precludes recovery of the rent payments sought in this action by plaintiffs, Domenico Staltieri and Dale Bloom.

Accordingly, the defendant's motion is granted. The complaint is dismissed and the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated: January 17, 2012._____________________________

Carmen R. Velasquez

Judge, Civil Court