185 Smith St. Assoc., LLC v Rivera
Annotate this CaseDecided on September 30, 2004
Civil Court, Kings County
185 SMITH STREET ASSOCIATES, LLC, Petitioner,
against
JOE RIVERA, d/b/a SPLISHY SPLASHY CLEANERS, Respondent- Tenant, and MEN AT SITE, "JOHN DOE" and "JANE DOE", Respondents-Undertenants.
L&T 89152/03
Attorney for Petitioner:Robert L. Farina, Esq.
Karp & Kalamotousakis, LLP
350 Fifth Avenue
Suite 703
New York, NY 10118
(212) 564-1250
Attorney for Respondent:Glenn Michaelson, Esq.
26 Court Street
Suite 1815
Brooklyn, NY 11242
(718) 624-1503
Kathy J. King, J.
In this commercial non-payment proceeding, petitioner moves by motion for restoration of the instant matter to the calendar, entry of money judgment in the amount of $39, 425.78, and legal fees.
Petitioner, 185 Smith Street Associates, LLC and respondent, Joe Rivera d/b/a Splishy Splashy entered into a stipulation of settlement dated November 3, 2003 regarding the premises located at 185 Smith Street, Brooklyn, New York The stipulation in question provided for, inter alia, a judgment of possession and a stay of the warrant of eviction to December 31, 2003 provided that respondent pay $1600.00, and entry of a money judgment in the amount of $39, 425.78 in the event respondent failed to vacate the premises and surrender the keys by 3 p.m. on December 31, 2003.
A hearing was held on April 23, 2004 to address whether respondent timely surrendered possession pursuant to Paragraph 5 of the stipulation. Both parties were represented by counsel. During the hearing, petitioner orally moved to dismiss and strike respondent's answer based on fraud.
Paragraph 5 of the stipulation requires that: "Respondent shall vacate the premises and surrender unencumbered possession[*2]
by delivering all keys, including gate lock keys to petitioner by 3 p.m. on 12/31/03."
Paragraph 5 was a condition precedent to Paragraph 6 which states in pertinent part, "...Should respondent fail to comply with the obligation to vacate &
surrender by 12/31 @ 3 p.m...then in addition to any other remedies, petitioner
shall be entitled to move for entry of a money judgment against respondent for any
and all rent, additional rent and other damages, from the former landlord-tenant
relationship from this agreement and/or from resp's use & occupancy of the
premises) on motion."
In support of the motion, Dr. Alvin Brodlie, a member of petitioner 185 Smith Street LLC, testified to the following: that he and his wife drove to Brooklyn and arrived at the subject premises at approximately 2:30 to 2:45 p.m. on the date in question. He indicated that his wife parked and sat in the car, while he stood in front of 185 Smith Street for approximately one hour with Miguel Torres, a superintendent in another building that he owned, to meet respondent, however, Mr. Rivera never arrived and he left about 4:00 to 4:15 p.m. Dr. Brodlie testified that he received the keys approximately one week later from Mr. Torres, although he does not recall the precise date.
Miguel Torres also testified on behalf of petitioner. He stated that he met Dr. Brodlie, at approximately 2:30 p.m. on December 31, 2003 in front of 185 Smith Street, to meet respondent and obtain the keys to 185 Smith Street pursuant to the instructions of counsel. Mr. Torres testified that he and the petitioner left after waiting approximately a half hour for respondent who never arrived. Bertha Brodlie, the wife of Dr. Brodlie, further testified that she waited in the car for her husband until they left after 4:00 p.m.
Respondent, Joe Rivera, in opposition, stated that on the date in question 185 Smith Street had been vacated. He conceded, however, that equipment remained in the basement of the premises since he was unable to contact petitioner prior to December 31, 2004 to gain access to the basement. He stated that he was in front of 183 Smith Street at 3 p.m., the new location of his laundry and dry cleaning business on December 31, 2003 to surrender the keys. After waiting for an hour, he went looking for the super at Dr. Brodlie's medical office. He does not remember the address or what time it was, nor does he indicate the name of the super.
Stipulations of settlement are essentially contracts and will be construed in accordance with contract principles. (see Sharp v Stavisky, 221 AD2d 216 [1st Dept, 1995]; 1029 Sixth, LLC v Rini v Corporation, John Doe, Sup Ct, App Div 1st Dept [2004] quoting Serna v Pergament Distributors, Inc., 182 AD2d 985, 986, 582 NYS2d 550 [lv dismissed 80 NY2d 893, 600 NE2d 636, 587 NYS2d 909]; see also J & H Equities Co., LLC v Knudholt, NJLJ, 12/20/02, p 21, col 2). They will not be set aside or modified absent a showing of fraud, collusion, mistake, accident or good cause. (see Matter of Frutiger, 29 NY2d 143, 149-50). But, where the terms of the stipulation are ambiguous, the stipulation will be construed so as to avoid interpreting the agreement in such a fashion as to highlight the ambiguity (1 Rasch, NY Landlord & Tenant [*3]Summary Proceedings [2d ed], § 107 et seq.) It appears that respondent substantially complied with the vacatur provisions of the stipulation since petitioner does not refute respondent's assertion that he vacated but for the equipment in the basement. However, while the stipulation is clear regarding when the keys had to be surrendered, conspicuously absent from the stipulation is a definition of whom the keys had to be surrendered to, and where surrender was to take place. This lack of specificity opened the door for the parties to have differing interpretations of where and how surrender was to take place, and the testimony does not clarify the omission. By petitioner's account, counsel informed petitioner and his agent to be outside the subject premises. However, the record does not indicate whether petitioner ever communicated a precise meeting place to respondent.
While respondent's testimony regarding his whereabouts at the appointed time is questionable, the Court finds that the stipulation cannot be construed in favor of the petitioner based on the ambiguity in Paragraph 5. "Where the ambiguity is the result of the draftsman's use of language, the clause in question containing the ambiguity will be resolved against the draftsman of the language."(see Comity Realty Corp., v Peterson, 118 Misc2d 796; 461 NYS2d 711 [1983]). In the instant case , petitioner's counsel drafted the stipulation of settlement containing an ambiguity of an essential term. Accordingly, respondent should not be penalized for the alleged breach of the stipulation.
Petitioner places the Court in the untenable position of speculating as to the surrender place of the keys contained in Paragraph 5 of the stipulation which is tantamount to second guessing the intent of the parties. "Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing" (see 1029 Sixth , LLC v Riniv Corp., John Doe, 777 NYS2d 122 {9 AD3d 142} [App Div, 1st Dept, 2004] quoting Vermont Teddy Bear Co. v 538 Madison Realty, 1 NY3d 470, 807 NE2d 876, 775 NYS2d 765).
The Court contrasts Paragraph 3 of the stipulation which required respondent to make a monetary payment to petitioner in order to stay the warrant of eviction through December 31, 2004. Unlike Paragraph 5, this provision contained very clear and unambiguous terms regarding the dollar amount, the method of payment, the payment due date, and designated address for payment. It should be noted that respondent fully complied with this section.
Based on the foregoing, petitioner's motion seeking entry of judgment is denied in its entirety. Further, petitioner's motion to dismiss and to strike respondent's answer is denied.
This constitutes the decision and order of the Court.
[*4]Dated: September 30, 2004
Brooklyn, NY KATHY J. KING
Judge, Civil Court
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