Obrzud v Yakhnytskyy

[*1] Obrzud v Yakhnytskyy 2021 NY Slip Op 50776(U) Decided on July 30, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : HELEN VOUTSINAS, J.P., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
2020-769 S C

Tomasz Obrzud, Appellant,

against

Oksana Yakhnytskyy, Respondent.

Anne Rosenbach, P.C. (Anne Rosenbach of counsel), for appellant. Philip Gurevich, PLLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, First District (Cheryl M. Helfer, J.), entered August 6, 2020. The order granted defendant's motion to vacate a judgment to the extent of, in effect, reducing the amount of the judgment from the principal sum of $6,000 to the principal sum of $350.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $6,000 for a loan that was not repaid, the parties entered into a stipulation wherein they agreed, insofar as is relevant, that the matter was settled for the sum of $500, to be paid by defendant to plaintiff's counsel at the rate of $50 per month for 10 months commencing September 1, 2017. The stipulation further provided that, in the event of defendant's default in any of the payments, plaintiff, upon submitting an affidavit of default, would be entitled to enter judgment for the full amount sued for, less any payments made, without further notice to defendant.

It is undisputed that defendant had made the payments for September, October and November 2017 in the sum of $150. A judgment was entered on February 5, 2018 upon defendant's alleged default in making the December 2017 payment. Thereafter, defendant moved to vacate the default judgment and to stay the execution of the judgment. In an affidavit in support of her motion, defendant asserted that she had made not only the December 2017 payment, but had paid the balance owed under the stipulation, by mailing one check, dated December 1, 2017, in the amount of $350 to plaintiff's attorney. Defendant further stated that a copy of the $350 check was annexed to defendant's motion papers. Plaintiff opposed the motion and now appeals from an order of the District Court entered August 6, 2020 granting defendant's motion to the extent of, in effect, reducing the amount of the judgment from the principal sum of [*2]$6,000 to the principal sum of $350.

While the parties' stipulation of settlement provided that, upon defendant's default in any of the scheduled payments, plaintiff was permitted to enter judgment for the full $6,000 amount sued for, less payments made by defendant, the District Court did not find that defendant had defaulted in her December 2017 payment, and as a result, the condition of the stipulation permitting plaintiff to enter judgment in the full amount sued for was not triggered. Thus, upon our review, we find that, contrary to plaintiff's contention, as there had been no default, the District Court did not substitute its own judgment or rewrite the parties' stipulation of settlement.

Accordingly, the order is affirmed.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021