Board of Mgrs. of 60 E. 88th St. Condominium Assn. v Stein

Board of Mgrs. of 60 E. 88th St. Condominium Assn. v Stein 2008 NY Slip Op 10036 [57 AD3d 381] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Board of Managers of 60 East 88th Street Condominium Association, Appellant,
v
Andrew Stein et al., Respondents. Board of Managers of 60 East 88th Street Condominium Association, Appellant, v David Kuo Liang Yang, Respondent.

—[*1] Nesenoff & Miltenberg, LLP, New York (Philip A. Byler of counsel), for appellant.

Kramer Levin Naftalis & Frankel, LLP, New York (Yehudis Shalva Lewis of counsel), for Andrew Stein, respondent.

Bainton McCarthy LLC, New York (J. Joseph Bainton of counsel), for David Kuo Liang Yang, respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 18, 2007, which granted defendant Stein's motion to enforce an oral stipulation purportedly made by plaintiff's counsel in open court on December 8, 2006 to dismiss plaintiff's claims for damages arising from Stein's harboring of dogs in the apartment he rented from defendant Yang, and denied plaintiff's cross motion to clarify the record to reflect that counsel made no such stipulation, or to vacate the purported stipulation and reinstate the claims against Yang for damages arising from Stein's harboring of dogs in Yang's apartment, unanimously reversed, on the law and the facts, with costs, plaintiff's motion to vacate the purported stipulation of December 8, 2006 granted and its claims for damages against Yang arising from Stein's harboring of dogs reinstated. Appeal from order, same court and Justice, entered November 27, 2007, which granted Yang's motion to dismiss a separate complaint for money damages arising from Stein's harboring of dogs in Yang's apartment, unanimously dismissed, without costs, as [*2]academic.

From the minutes of the December 8, 2006 proceeding, it appears that plaintiff's counsel agreed that plaintiff was no longer seeking damages arising from the harboring of the dogs but was seeking only legal fees in connection with the damages claims and thus that she acquiesced in the stipulation (see Hallock v State of New York, 64 NY2d 224, 231 [1984]). Since counsel had represented plaintiff at several conferences earlier in the consolidated actions and was knowledgeable about these proceedings, the court reasonably concluded that she had apparent authority to dismiss the damages claims (see id.; Matter of Silicone Breast Implant Litig., 306 AD2d 82, 84-85 [2003]).

However, it also appears from the minutes that plaintiff's counsel agreed that the claims against Yang "relate to the dogs, the parking by Mr. Stein and the legal fees in relation thereto" (emphasis added), and the minutes reflect a general lack of clarity in the proceeding. For instance, when the court asked whether plaintiff consented to the dismissal of certain claims, it was not plaintiff's counsel but Yang's counsel who answered in the affirmative. We therefore find that plaintiff has demonstrated good cause to vacate the stipulation, i.e., that "it appears that [plaintiff] has inadvertently, unadvisably or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and [works] to [its] prejudice" (Matter of Frutiger, 29 NY2d 143, 150 [1971] [internal quotation marks and citation omitted]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz and DeGrasse, JJ.