Kantor v Mesibov

[*1] Kantor v Mesibov 2006 NY Slip Op 51776(U) [13 Misc 3d 1211(A)] Decided on September 18, 2006 Supreme Court, Nassau County Austin, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2006
Supreme Court, Nassau County

Howard Kantor, Plaintiff,

against

William J. Mesibov, M.D., Stuart J. Altman, M.D. & Jeffrey A. Amer, M.D., P.C., f/k/a Howard L. Kantor, M.D., William J. Mesibov, M.D., Stuart J. Altman, M.D. & Jeffrey A. Amer, M.D., P.C., Defendants.



Howard L. Kantor, Plaintiff, against

against

William J. Mesibov, Stuart A. Altman and Jeffrey A. Amer, Defendants.



4891-00



COUNSEL FOR PLAINTIFF

Michael L. Weinstein & Assocs., P.C.

445 Broad Hollow Road - Suite 204

Melville, New York 11747-4787

COUNSEL FOR DEFENDANT

(for Mesibov, Altman & Amer in action No. 1 and for Mesibov & Altman in action # 2)

Warner & Scheurerman, Esqs.

6 West 18th Street - 10th Floor

New York, New York 10011

(for Amer in action # 2)

Rosen Slome Marder, LLP 333 Earle Ovington Boulevard

Suite 901

Uniondale, New York 11553-3622

Leonard B. Austin, J.

Both of the actions before this Court arise from three promissory notes dated July 1, 1995 made by MDPC payable to Kantor. The first note was in the principal sum of $12,000. This note was payable in sixty (60) equal monthly installments of principal and interest of $249.10 with the first payment being due on September 1, 1995. The remaining payments were due on the first day of each successive month. The monthly payment amount reflected payment of principal with interest at the rate of nine (9%) percent per annum.

The second note was in the principal sum of $88,000. This note was payable in sixty (60) equal installments of principal and interest of $1,845.42 with the first payment being due on September 1, 1995. The remaining payments were due on the first day of each successive month. The monthly payment reflected payment of principal with interest at the rate of nine (9%) percent per annum.

The third note was in the principal sum of $150,000. This note was payable in sixty (60) equal monthly installment of $2,500 with first payment being due on September 1, 1995. The remaining payments were due on the first day of each successive month. This note was not interest bearing.

MDPC made thirty-seven (37) payments on the notes and then defaulted. Kantor commenced an action against MDPC seeking to recover the balance due on the notes.

Kantor commenced Action No. 1 seeking to recover the balance due on the promissory notes. When Action No. 1 was commenced, the principal sum of $5,729.30 on the first note, the principal sum of $42,444,66 on the second note and the principal sum of $57,500 on the third note was their due to Kantor.

Action No. 1 was settled for the sum of $110,000 in an undated Stipulation of Settlement ("Stipulation"). The Stipulation required MDPC to make an initial payment of $3,000 on or before June 16, 2000. MDPC was then required to make fifty-seven (57) payments of $1,000 with the first of such payments being due on July 1, 2000 and with subsequent payments being due on the first of each successive month up to and including March 1, 2005. The remaining amount was to be paid in sixteen (16) payments of $3,125 with the first payment due on or before April 1, 2005 and the remaining payment due on the first day of each successive month until the entire balance had been paid.

The Stipulation provided that if MDPC failed to make a payment when due and such default was not cured within five days notice Kantor could then enter a judgment against the MDPC for the balance of the $110,000 outstanding after giving credit for the payments made and received. Kantor was also entitled to receive statutory interest from the date of default.

In the Stipulation, Mesibov and Altman acknowledged that they had personally [*2]guaranteed MDPC's obligations on all three promissory notes. Mesibov and Altman each specifically agreed their personal guarantees remained in effect notwithstanding any changes made in the three underlying notes by the Stipulation and any related agreements.

Although Amer personally guaranteed the notes, he was not a party to, and did not execute, the Stipulation.

MDPC made payments pursuant to the Stipulation through September 2005 and thereafter defaulted. By letter dated October 19, 2005, counsel for Kantor advised MDPC of its default in payment, and Kantor's intention to enter a judgment against MDPC in the event that the default was not cured.

MDPC did not cure its default. As a result, on December 9, 2005, Kantor entered a judgment against MDPC in the principal sum of $42,000 together with statutory interest from September 1, 1995 and costs and disbursements as taxed by the County Clerk. The total amount of the judgment was $81,946.50.

MDPC now moves in Action No. 1 for an order pursuant to CPLR 5015(a)(3) vacating the judgment on the grounds that Kantor fraudulently misrepresented to the Court the date from which interest should be calculated or for an order pursuant CPLR 2001 and 5019 correcting the errors made in calculating the interest and giving MDPC credit for its payments.

Kantor commenced Action No. 2 on February 9, 2006. In that action, prosecuted pursuant to CPLR 3213, Kantor seeks to recover from Mesibov, Altman and Amer the amount remaining due on the promissory notes made by MDPC payable to Kantor based upon their personal guarantees.

Mesibov, Altman and Amer have cross-moved to dismiss Action No. 2.

DISCUSSION

A.Action No. 1 - Motion to Vacate or Correct Judgment

Kantor entered a judgment on MDPC's default in payment in the principal sum of $42,000 together with interest at 9% from September 1, 1995.

MDPC asserts the judgment incorrectly states the principal sum and incorrectly calculates interest from September 1, 1995. MDPC seeks to vacate the judgment or to correct the judgment to indicate the correct amount due and the proper calculation of interest.

In an affidavit submitted by Kantor in Action No. 2, Kantor avers MDPC has made payments of $69,500 towards the amount due on the Stipulation and a payment of $1,500 between the time the judgment was submitted and later entered.

Kantor concedes that interest should be calculated from the date of default under the Stipulation, October 19, 2005, and consents to a modification of the judgment so that interest is calculated from that date.

Kantor also concedes that he received a payment of $1,500 from MDPC between the time he submitted the judgment for entry and the time it was entered. He consents to a modification of the judgment to reflect the principal amount due of $40,500.

According to Kantor, the judgment entered in Action No. 1 should be for the principal balance of $40,500 together with statutory interest from October 19, 2005.

Kantor asserts that MDPC has misinterpreted his affidavit sworn to January 31, 2006 made in support of his motion for summary judgment in lieu of complaint in Action No.2. Paragraph 7 of that affidavit states, "KMAA [Kantor, Mesibov, Altman and Amer] paid a total of $69,500.00 under the terms of the Stipulation." Paragraph 9 of the affidavit states, "After the [*3]judgment was submitted to the Court, KMAA made an additional $1,500.00 payment to Plaintiff." Kantor argues that this language should be interpreted to mean that he has received a total of $69,500 from MDPC leaving a balance due of $40,500. Therefore, he is entitled to enter a judgment against MDPC in that sum together with interest from October 19, 2005.

MDPC seeks to interpret the language as indicating that Kantor received payments in the sum of $71,000 on account of the Stipulation leaving a balance due $39,000. Judgment should be entered in that amount.

Paragraphs 7 and 9 Kantor's January 31, 2006 affidavit are ambiguous. In paragraph 7, Kantor avers MDPC paid him $69,000 under the terms of the Stipulation. In paragraph 9, Kantor avers he received $1,500 from MDPC after the judgment was submitted but before it was entered. Payments made "...under the terms of the Stipulation" could be interpreted to mean payments made before Kantor declared MDPC to be in default. Kantor has acknowledged receipt of a payment of $1,500 after the default.

Where the precise amount due under the terms of a stipulation cannot be determined with mathematical certainty or without resort to extrinsic proof, the matter must be set down for a hearing to determine the amount due. See, Reynolds Securities, Inc. v. Underwriters Bank and Trust Co., 44 NY2d 568 (1978); and 1 New York Civil Practice ¶ 3215.42.

Neither side has provided the Court with copies of the checks used to make the payments due under the terms of the Stipulation or a schedule of payments made and received. Neither party indicates when payments had been made prior to MDPC's default. Producing such documentary proof and a clear analysis would have been much simpler than engaging in a contest of interpreting Kantor's ambiguous affidavit.

MDPC was notified of its default by letter dated October 19, 2005. The amount Kantor claims to have been received as of the date of MDPC's default does not correlate to the payments that were due as of the date of default. If MDPC had made all of the payments then due under the Stipulation, Kantor should have received $78,750 from MDPC when it defaulted in the payments.[FN1]

The court has the inherent authority to vacate a judgment. Woodson v. Mendon Leasing Corp., 100 NY2d 62 (2003). Under the circumstances in this case, the exercise of such discretion is appropriate. The judgment should be vacated and the matter set down for a hearing before a special referee to hear and determine the actual amount due. Once that amount is determined, the clerk shall then enter a judgment for that amount together with interest from October 19, 2005. However, until such amended judgment is entered, the judgment, as it currently exists, should remain of record until the amended judgment, consistent herewith, is entered.

B.Action No. 2 - Motion Sequence 1 - Kantor's Motion for Summary Judgment in [*4]Lieu of Complaint

Action No. 2 was commenced by Kantor against Mesibov, Altman and Amer to recover the amounts due on the notes on their personal guarantees. This is not entirely clear from the affidavit Kantor has submitted in support of this motion. However, his May 15, 2006 affidavit submitted in opposition to the cross-motions to dismiss this action clearly establishes that this is an action brought against Mesibov, Altman and Amer on their guarantees.

A guarantee is an instrument for the payment of money only for the purposes of CPLR 3213. European American Bank v. Lofrese, 182 AD2d 187 (2nd Dept. 1992); and Council Commerce Corp. v. Paschalides, 92 AD2d 579 (2nd Dept. 1983).

Plaintiff establishes a prima facie case on a guarantee by establishing the existence of the underlying promissory note, the guarantee and the failure of the prime obligor to make the payments required by the promissory note. E.D.S. Security Systems, Inc. v. Allyn, 262 AD2d 351 (2nd Dept. 1999); and I.P.L. Corp. v. Industrial Power & Lighting Corp., 202 AD2d 1029 (4th Dept. 1994).

A guarantee must be in writing and executed by the person to be charged. Schulman v. Westchester Mechanical Contractors, Inc., 56 AD2d 625 (2nd Dept. 1977); and General Obligations Law §5-701(a)(2). The intent to guarantee payment of an obligation must be clear and explicit. PNC Capital Recovery v. Mechanical Parking Systems Inc., 283 AD2d 268 (1st Dept. 2001), app. dism., 98 NY2d 763 (2002). Clear and explicit intent to guarantee the obligation is established by having the guarantor sign as guarantor and by the language contained in the guarantee. Salzman Sign Co. v. Beck, 10 NY2d 63 (1961); and Harrison Court Assocs. v. 220 Westchester Ave. Assocs., 203 AD2d 244 (2nd Dept. 1994).

Once the plaintiff has established a prima facie entitlement to judgment as a matter of law on the guarantee, the defendant must establish, through admissible evidence, the existence of triable issues of fact or the existence of a viable defense to the action on the guarantee. See, Federal Deposit Ins. Co. v. Jacobs, 185 AD2d 913 (2nd Dept. 1992).

All of the Defendants herein assert that their guarantees were not meant to guarantee MDPC's obligations on all three notes. In support of this position, the Defendants point to the language in the guarantee each executed which states:

"...the undersigned hereby unconditionally guarantees to Howard L. Kantor, M.D. ...and every subsequent holder of this note...that all

sums payable thereunder shall be payable in full when due... The signature of the undersigned hereto is intended as endorsementof the within instrument..."

The liability of a guarantor is narrowly construed and will not extended beyond the plain and explicit language of the guarantee. Key Bank of Long Island v. Burns, 162 AD2d 501 (2nd Dept. 1990). Any ambiguity in a guarantee is to be construed in favor of the guarantor. Id.; and Israel Discount Bank of New York v. 500 Fifth Avenue Assocs., 174 AD2d 491 (1st Dept. 1991).

Notwithstanding their claim with regard to the apparent limitation in the guarantee, in Paragraph 4 of the Stipulation, Mesibov and Altman specifically acknowledge they personally guaranteed MDPC's obligations to Kantor on all three notes. Thus, the Stipulation clears up any ambiguity regarding the obligations they guaranteed.

Amer, however, specifically asserts that he was not involved in the business end of MDPC's operation. He recalled signing the guarantee. However, he asserts he was never [*5]provided with copies of the notes to which the guarantee was to be applicable.He claims that the first time he actually saw the notes with the attached guarantee was when he was served with papers in this action. He asserts that Kantor photocopied the guarantee and attached a copy to each of the notes for the purposes of this motion.

The defense has merit with regard to Amer. The guarantee upon which Kantor relies does not an unconditionally guarantee of all of MDPC's obligations to Kantor. The guarantee is written in the singular. It guaranties MDPC's obligations to Kantor on "this note." Guarantors signatures on the guarantee are ". . . intended as endorsements of the within instrument." Nothing in the guarantee indicates the note or notes to which the guarantee was applicable.

The question or whether an agreement is ambiguous is a question of law to be determined by the Court. W.W.W. Assocs. v. Giancontieri, 77 NY2d 157 (1990); and JJFN Holdings, Inc, v. Monarch Investment Properties, Inc., 289 AD2d 528 (2nd Dept. 2001).

Ambiguity exists where the terms of the agreement are susceptible to two reasonable interpretations. See, Uribe v. Merchants Bank of New York, 92 NY2d 336 (1998); and Around the Clock Delicatessen, Inc. v. Larkin, 232 AD2d 514 (2nd Dept. 1996). Ambiguity does not exist simply because the parties urge different interpretations of its terms. Bethlehem Steel Co. v. Turner Construction Co., 2 NY2d 456 (1957); and Elletson v. Bonded Insulation Co., Inc., 272 AD2d 825 (3rd Dept. 2000).

Parol evidence must be considered in interpreting a contract that is ambiguous. See, South Road Assocs., LLC. v. IBM Corp., 4 NY2d 272 (2005); and 767 Third Avenue, LLC v. Orix Capital Markets, LLC, 26 AD3d 216 (1st Dept. 2006).

In this case, the guarantee is susceptible to two different interpretations as to Amer's obligation as a guarantor. Therefore, questions of fact exist with regard to the Amer guarantee.

If the party seeking summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985); Widmaier v. Master Products Mfg., 9 AD3d 362 (2nd Dept. 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept. 1999).

Kantor has established a prima facie case against the Defendants Mesibov and Altman. He has failed to do so against Amer.

C.Action No. 2 - Motion Sequence 2 - Amer's Cross-Motion for Summary Judgment

The promissory notes were made by MDPC as part of the agreement whereby when Kantor withdrew from the MDPC in 1995. Mesibov, Altman and Amer, who remained as members of MDPC after Kantor's withdrawal, executed the subject guarantee.

By letters dated November 18, 1998, Kantor advised MDPC that it was in default on the notes. Kantor further advised MDPC that if the default was not cured, Kantor intended to demand payment of the full amounts then due and owing. The letter also advised Mesibov, Altman and Amer that they had personally guaranteed payment on all three notes. Kantor indicated that he reserved his rights to hold them jointly and severally liable for payment of this note based upon their guarantee.

When MDPC failed to pay the notes, Action No. 1 was commenced. In Action No. 1, Kantor proceeded on the notes solely against MDPC. He did not sue Mesibov, Altman or Amer individually on their guarantees. Action No. 1 was resolved by the Stipulation. Although the [*6]Stipulation is undated, based upon the payment dates and correspondence between the attorneys for the parties, the Stipulation was agreed to and executed in the late spring or early summer 2000. Although Kantor's attorney asked Amer to execute the Stipulation, Amer did not do so.

Kantor commenced Action No. 2 on February 9, 2006 by motion for summary judgment in lieu of complaint. In his reply affidavit, Kantor specifically states that Action No. 2 is an action against the guarantors to recover the balance due on the promissory notes.

Amer asserts that Kantor's decision to enter a judgment against MDPC constitutes an election of remedies and bars Kantor from suing him on the guarantee.

General Obligations Law § 15-501(3) provides that when an executory accord is not performed by one party, the other party may either assert its rights under the original obligation or asserts its rights under the accord. An executory accord is "...an agreement embodying a promise express or implied to accept at some future time some a stipulated performance in satisfaction or discharge in whole...or any present contract obligation." General Obligations Law § 15-1501(1).

If the executory agreement is not performed, General Obligations Law §15-1501 gives the promisee the option of either enforcing the accord or suing on the underlying obligation. American Bank & Trust Co. v. Koplik, 87 AD2d 351 (1st Dept. 1982); and 19A NY Jur.2d Compromise, Accord and Release § 23. Amer asserts that, by entering a judgment on the Stipulation, Kantor has elected his remedy via enforcement of the accord.

However, this argument overlooks the fact that the obligations underlying the accord were the promissory notes, not the guarantee

A guarantee is a separate contractual obligation that may impose greater responsibility on the guarantor than is imposed upon the principal obligor. American Trading Co., Inc. v. Fish, 42 NY2d 20 (1977); and Pollina v. Blatt, 262 AD2d 384 (2nd Dept. 1999). See also, 63 NY Jur 2d, Guaranty and Suretyship §122. A guarantor may be held liable on a guarantee even though the principal may escape liability on the underlying obligation. Beal Bank, SSB v. Sandpiper Resort Corp., 251 AD2d 360 (2nd Dept. 1998); and Manufacturers Hanover Trust Co. v. Green, 95 AD2d 736 (1st Dept. 1983); and Bank of North America v. Shapiro, 31 AD2d 465 (1st Dept. 1969).

Thus, when MDPC defaulted on its obligations on the Stipulation, General Obligations Law §15-1501 gave Kantor the option of either proceeding on the notes or the Stipulation. Since Kantor's rights under the guarantee were not affected by the Stipulation, General Obligations Law §15-1501 does not provide Amer with a defense to the action on the guarantee.

An action on a guarantee is subject to the six year statute of CPLR 213(2). American Trading Co, Inc. v. Fish, 42 NY2d 20 (1977); and Town of Brookhaven v. MIC Property and Casualty Ins. Co., 245 AD2d 365 (1997); and 63 NY Jur.2d Guaranty and Suretyship §315. The cause of action on a guaranty accrues and the statute of limitations begins to run when the prime obligor defaults on the underlying debt. Haber v. Nasser, 289 AD2d 199 (2nd Dept. 2001); and Gazza v. United California

Bank Int., 88 AD2d 968 (2nd Dept. 1982); and 63 NY Jur.2d Guaranty and Suretyship §317.

By letter dated December 28, 1998, Kantor advised MDPC that it was in default of the payment on the note due on December 1, 1998. He further advised that in the event the payment was not made within ten days of the date of the letter, he would declare MDPC in default and accelerate the entire unpaid balance. When MDPC did not cure its default, Kantor commenced [*7]Action No. 1.

The cause of action on the promissory notes accrued and the statute of limitations began to run, at the latest, on January 8, 1999, which is ten days after Kantor gave notice to MDPC of its default in payment on the promissory notes and its right to cure the default. The default was not cured.

Action No. 2 was commenced on February 9, 2006. Therefore, Action No. 2 was commenced more than six years from the accrual of the cause of action. It is thus time barred unless the statute of limitations was tolled or extended.

Amer was not a party to and did not sign the Stipulation. He was not a party to the litigation that was resolved by the Stipulation.

Kantor asserts that a July 7, 2000 letter from Amer's attorney which states "...in order to accommodate Dr. Kantor, Dr. Amer will agree that the fact that the parties to the Proposed Stipulation modified the alleged payment terms of the alleged obligations to Dr. Kantor in paragraphs 2 and 3 of the Proposed Stipulation of Settlement will not constitute an additional defense to a claim under the alleged Guaranty" constitutes a waiver or toll of the statute of limitations. Amer's counsel continued in the same letter "...Dr. Amer specifically reserves all defenses he now has or hereinafter may have to any claim based on the guaranty or the obligations underlying that Guaranty."

A guarantor's obligation cannot be altered without the guarantor's consent. White Rose Food v. Saleh, 99 NY2d 589 (2003); and Mackler v. Burke, 2 AD3d 505 (2nd Dept. 2003). If the original note is modified without the consent of the guarantor, the guarantor is relieved of its obligations. Id.

A stipulation is a contract which will be enforced in accordance with specific its terms. Ross v. Ross, 16 AD3d 713 (3rd Dept. 2005); McKenzie v. Vintage Hallmark, PLC, 302 AD2d 503 (2nd Dept. 2003); and Charter Realty & Development Corp. V. New Roc Assocs., L.P., 293 AD2d 438 (2nd Dept. 2002).

The Stipulation did not change or alter Amer's obligations on the guarantee. Amer was not a party to the Stipulation. The Stipulation created a new contract between MDPC and Kantor.

The Stipulation and Amer's attorney's letter did not affect or modify Kantor's right to proceed against Amer on the guarantee.

If Kantor had obtained a judgment against Amer on the guarantee and recovered on that judgment, Amer would have had an action over against the co-guarantors to recover any amount he paid beyond his proportionate share of their common liability. See, Leo v. Levi, 304 AD2d 621 (2nd Dept. 2003). Alternatively, to the extent that Kantor recovered on the guarantee against Amer, Amer would have had a claim for indemnification against MDPC. See, Leghorn v. Ross, 53 AD2d 560 (1st Dept. 1976), aff'd., 42 NY2d 1043 (1977).

Amer specifically reserved all defenses that he had or might have on action on a guarantee. One of those defenses is the statute of limitations.

The cause of action on the guarantee accrued, at the latest, in January 1999. Action No. 2 was not commenced until February 2006 which is more than six years after the cause of action accrued. Thus, the action against Amer is time barred and must be dismissed.

D.Action No. 2 - Motion Sequence3 - Cross-Motion of Mesibov and Altman to Dismiss [*8]

Mesibov and Altman move to dismiss pursuant to CPLR 3211(a)(1) and (5). If their motion to dismiss is denied, they assert that issues of fact exist precluding summary judgment.

Like Amer, Mesibov and Altman assert the guarantee is ambiguous in that it does not indicate the specific promissory note to which it applies. They also assert the guarantee does not apply to all of the promissory notes since the guarantee applies to "this note" while MDPC made three separate notes payable to Kantor. However, as to Mesibov and Altman, this argument is without merit. Paragraph 4 of the Stipulation, which Mesibov and Altman each signed individually, specifically acknowledges that Mesibov and Altman personally guaranteed MDPC's obligations to Kantor on each of the promissory notes.

Mesibov and Altman move to dismiss pursuant to CPLR 3211(a)(5) on the grounds the action is barred by the statute of frauds and the statute of limitations.

The statute of frauds defense is based upon the theory that Kantor was seeking to hold Mesibov and Altman personally liable for MDPC's obligations under the Stipulation. Mesibov and Altman assert they did not personally guarantee MDPC's obligation on the Stipulation.

Action No. 2 is an action on the personal guarantees on the promissory notes; not the Stipulation. General Obligations Law § 5-701(2) requires a promise to answer for the debt of another be in writing executed by the party sought to be charged. A promise made to answer for the obligations of a corporation is an agreement that must be in writing. See, Cavalla v. Ernest F. Elliot, Inc., 86 AD2d 884 (2nd Dept. 1982); and England Strohl/Denigris, Inc. v. Weiner, 538 F. Supp. 612 (S.D.NY 1982), aff'd., 740 F.2d 954 (2nd Cir. 1984). Since Mesibov and Altman acknowledge in writing that they personally guaranteed MDPC's obligations on the notes, the statute of frauds does not provide them with a defense to Action No. 2.

Mesibov and Altman further assert the claim is barred by the statute of limitations. Like Amer, they assert the cause of action on the guarantees accrued in either December 1998 or January 1999 when MDPC defaulted on the notes. Like Amer, they assert that since the statute of limitations has not been tolled or extended the cause of action on the guarantees is time barred.

Paragraph 4 of the Stipulation, which provides:

"...William J. Mesibov, M.D. and Stuart J. Altman, M.D. each specifically agree to the continued viability of their personal guarantees of the Notes notwithstanding the changes and modifications made to the Notes and any

other underlying agreement."

As with Amer, this provision does nothing more than acknowledge that Mesibov and Altman will not raise as a defense to an action on their guarantees the change in the prime obligor's obligations as a defense to the action. This provision did not toll or extend the statute of limitations for an action on the guarantees made by Mesibov and Altman on the notes.

Kantor offers no legal or factual argument why the statute of limitations does not provide a defense to an action on the guarantees. Therefore, Action No. 2 is barred by the Statute of Limitations and must be dismissed.

Since the action is being dismissed as time barred, the Court need not address the applicability of General Obligations Law §15-1501 as a bar to this action against Mesibov and Altman.

Accordingly, it is, [*9]

ORDERED, that the motion of Defendants Mesibov and Altman in Action No. 1 to vacate the judgment entered in that action is granted. However, the judgment shall remain of record until the entry of an amended judgment consistent herewith; and it is further,

ORDERED, that the matter is set down for hearing before Special Referee Frank Schellace on October 25, 2006 at 9:30 a.m. to hear and determine the amount due Kantor pursuant to the Stipulation; and it is further,

ORDERED, that counsel for Kantor is directed to serve and file a Note of Issue and Statement of Readiness upon counsel for the Defendant in Action No. 1 and to file a copy with the Clerk of the Court and pay the appropriate fees of on or before October 11, 2006; and it is further,

ORDERED, that the County Clerk of Nassau County is directed to enter a judgment in favor of Kantor and against Defendant in Action No. 1 in the amount determined to be due by the Special Referee together with interest at the statutory rate from October 19, 2005 and costs and disbursements as taxed by the Clerk; and it is further,

ORDERED, that Plaintiff's motion for summary judgment in lieu of complaint in Action No. 2 is denied; and it is further,

ORDERED, that the cross-motions of the Defendants Mesibov and Altman in Action No. 2 to dismiss the action is granted. Action No. 2 is hereby dismissed as to them; and it is further,

ORDERED, that the cross-motion of the Defendant Amer in Action No. 2 to dismiss the action is granted. Action No. 2 is hereby dismissed as to him.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

September 18, 2006Hon. LEONARD B. AUSTIN, J.S.C.

Footnotes

Footnote 1: MDPC defaulted as of the payment due on October 1, 2005. As of September 30, 2005, MDPC was required under the terms of the Stipulation to have made one payment of $3,000 due on or before June 16, 2000, fifty-seven (57) payments of $1,000 due on the first of each month between July 1, 2000 and March 1, 2005 totalling $57,000 and six (6) payments of $3,125 or a total of $18,750 due on April 1, 2005 and the first day of each month thereafter. If MDPC defaulted as of the payment due on October 1, 2005, Kantor should have received $3000 + $57000 + $18,750, a total of $78,750 as of the payment due on October 1, 2005. That would leave a balance of $31,250.