Fisk Bldg. Assoc. L.L.C. v Kaplan

[*1] Fisk Bldg. Assoc. L.L.C. v Kaplan 2009 NY Slip Op 52071(U) [25 Misc 3d 128(A)] Decided on October 14, 2009 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570243/09.

Fisk Building Associates L.L.C. Plaintiff-Respondent,

against

Leopold Kaplan, Stephen S. Santo and Henriette Jeanne Louzoun, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, New York County (Matthew F. Cooper, J.), entered December 8, 2008, which granted plaintiff's motion for summary judgment in the principal sum of $14,333.86.

Per Curiam.

Order (Matthew F. Cooper, J.), entered December 8, 2008, affirmed, with $10 costs.

Civil Court properly awarded summary judgment to plaintiff landlord against defendants (former co-tenants) in this plenary action for breach of a stipulation of settlement. The terms of the stipulation reveal that the parties intended that the defendants share joint and several liability for the monies due under the stipulation (see Pekofsky v Nanuet Auto Parts, 210 AD2d 208 [1994]). Defendants unequivocally agreed and acknowledged that "they" were indebted to plaintiff for "their use and occupancy" of the premises from November l, 2006 through June 30, 2007. The stipulation further stated that all three defendants herein shall be referred to "individually and collectively" as respondents in the underlying eviction proceeding. There is nothing in the stipulation to suggest that defendants' liability was intended to be anything other than joint and several. Thus, in light of the express terms of the stipulation and the presumption that when two or more persons assume an obligation they do so jointly (Wujin Nanxiashu Secant Factory v Ti-Well Intl. Corp., 22 AD3d 308, 311 [2005], lv denied 7 NY3d 703 [2006]), no issue of fact exists regarding the nature or scope of defendants' liability.

We have considered defendants' remaining arguments and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: October 14, 2009