United Props. Corp. v Remax Prop. Network, Inc.

[*1] United Props. Corp. v Remax Prop. Network, Inc. 2009 NY Slip Op 50811(U) [23 Misc 3d 135(A)] Decided on April 24, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-890 S C.

United Properties Corp., Appellant,

against

Remax Property Network, Inc., Respondent.

Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), dated November 9, 2007. The order, inter alia, granted tenant's motion to vacate a final judgment.

Order reversed without costs and matter remanded to the District Court for a determination de novo, following a hearing, of tenant's motion to vacate the final judgment.

In this commercial nonpayment proceeding, the parties entered into a stipulation of settlement on June 8, 2007 which provided that landlord would have a final judgment awarding it possession and the sum of $15,224.39, that tenant was to pay $8,000 by June 15, 2007 and $5,224.39 by July 1, 2007, and that, if payment were timely made, the balance of $2,000 would be waived. The stipulation further stated that if tenant provided landlord with proof that it had previously made payments which landlord had failed to credit, landlord would credit tenant with these payments. Thereafter, landlord submitted an affidavit of default acknowledging that tenant had made the $8,000 payment but alleging that tenant had failed to make the second payment. On July 16, 2007, a final judgment was entered upon landlord's affidavit of default, awarding landlord possession and the sum of $7,224.39. Tenant subsequently moved to vacate the final judgment, asserting that it had complied with all of its obligations under the stipulation. Landlord opposed the motion, claiming that notwithstanding that tenant had tendered a sum which tenant believed satisfied its obligations under the stipulation, there remained a balance due. The District Court granted tenant's motion without holding a hearing.

In light of the factual dispute regarding tenant's compliance with the stipulation of settlement, it was error for the District Court to grant tenant's motion without holding a hearing to determine the disputed issues of fact (see Bechtoldt Corp. v McClendon, NYLJ, July 13, 1994 [App Term, 9th & 10th Jud Dists]). Accordingly, we reverse the District Court's order and [*2]remand the matter for a hearing to resolve the factual issues.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: April 24, 2009