Grand Concourse Estates LLC v Ture

[*1] Grand Concourse Estates LLC v Ture 2017 NY Slip Op 50217(U) Decided on February 17, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Gonzalez, JJ.
570732/16

Grand Concourse Estates LLC, Petitioner-Landlord-Respondent,

against

Djarga Ture and Bawaka Samura, Respondents-Tenants-Appellants,

Tenants appeal from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), dated October 28, 2015, which granted landlord's motion for summary judgment dismissing tenants' counterclaim and denied tenants' cross-motion for summary judgment on said counterclaim in a nonpayment summary proceeding.

Per Curiam.

Order (Paul L. Alpert, J.), dated October 28, 2015, modified to deny landlord's motion and reinstate the counterclaim; as modified, order affirmed, without costs.

Civil Court should have denied landlord's motion for summary judgment. On this record, it cannot be determined that the July 20, 2015 stipulation, entered in settlement of a subsequent nonpayment proceeding between the parties, barred tenants' extant counterclaim in this proceeding seeking a rent refund. There is no mention of the counterclaim in the stipulation (see Cahill v Regan, 5 NY2d 292 [1959]), nor is there any language indicating that the parties intended the stipulation to resolve anything other than the limited rent claims at issue in the subsequent proceeding (see Morales v Solomon Mgt. Co., LLC, 38 AD3d 381, 382 [2007]). In the absence of an express intention to settle the counterclaim or all claims between the parties (see Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292 [2005]; Zimmerman v West Nicholas Assoc. LLP, 49 Misc 3d 127[A], 2015 NY Slip Op 51375[U] [App Term, 1st Dept 2015]), the stipulation fails to resolve the factual issues as a matter of law (see Dunleavy v First Am. Tit. Ins. Co. of NY, 117 AD2d 952, 953 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 17, 2017