Pardy v Brashaw

[*1] Pardy v Brashaw 2006 NY Slip Op 52050(U) [13 Misc 3d 1229(A)] Decided on October 3, 2006 Supreme Court, Westchester County LaCava, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 15, 2006; it will not be published in the printed Official Reports.

Decided on October 3, 2006
Supreme Court, Westchester County

Louis M. Pardy, Plaintiff(s),

against

Lawrence C. Brashaw a/k/a Lawrence Bradshaw a/k/a Lawrence Braschaw & Jill Ann Brashaw a/k/a Jill Ann Roberts a/k/a Jill Braschaw, Defendant(s).



3597/05



Stephen P. Dewey, Esq.

Attorney for Plaintiff

PO Box 2511

Briarcliff Manor, NY 10510-2511

Brian Allen, Esq.

Law Offices of Walter J. Handelman

Attorney for Defendants

1 North Broadway, Suite 1001

White Plains, New York 10601

John R. LaCava, J.

On July 25, 2006, a non jury trial was conducted in this matter. At the conclusion of the trial the parties were given the opportunity to submit memoranda with proposed findings of fact and substantive law on the issues developed at the trial. Based upon the credible evidence adduced at the trial, and upon due consideration of the arguments at trial and post trial submissions by the parties, the Court makes the following findings:

FINDINGS OF FACT

This is an action by plaintiff/landlord to recover for alleged damages caused by defendants/tenants following their vacating of the leasehold. The subject premises was a single family house located at 1244 Saw Mill River Road in Yonkers. Defendants took possession of the home on or about May 15, 1997 pursuant to a written lease (see Plaintiff's Exhibit 2, in evidence). The lease's terms extended for a period of one year and the defendants remained in possession on a month to month basis until they finally vacated the premises in early October, 2004. The monthly rent was $1,575 (later raised to $1,650) and plaintiff acknowledged at trial that defendants had posted two months rent, or $3,150 as security.

In August, 2004, plaintiff, represented by attorney Andrew M. Romano, Esq., commenced a non payment proceeding against defendants in the Yonkers City Court upon the grounds that they [*2]were two months in arrears in their rent payments. Defendants were represented by their current attorney Brian Allen, Esq. In September, 2004, the case was resolved when the parties agreed to a Stipulation of Settlement (see Plaintiff's Exhibit 5). No inspection of the premises was conducted by the plaintiff prior to the execution of the Stipulation. In pertinent part, the Stipulation provided as follows:

The parties hereby agree and stipulate to the following in settlement of the above matter:

1. That upon taking possession of the subject

premises, Tenants paid to Landlord ... the sum of $1,575,

representing their last month's rent, and the sum of

$1,575, representing a security deposit, and that the

Landlord is still in possession of said sums;

2. That Tenants have purchased and installed certain

items of personal property at the subject premises

including, but not limited to, a refrigerator,

dishwasher, clothes washer and dryer, and ceiling

fans, and that such property as of the date of this

stipulation belongs to tenants;

3. That Tenants ... will vacate the subject

premises and return possession thereof to Landlord

on or prior to October 15, 2004;

4. That upon vacating the subject premises,

Tenants shall leave within the subject premises

the items recited in paragraph two herein, and shall

forfeit their possession thereof to the Landlord;

5. That Landlord shall apply the sums recited in

paragraph one herein as and for any and all past and

future rents owed to Landlord by Tenants in complete

satisfaction thereof;

6. That the right to a return of their security

deposit recited in paragraph one and the right to

collect the interest earned thereon shall be waived

by Tenants, and said deposit with interest shall retained

by Landlord;

7. That Tenant shall return possession of the

premises broom clean and in good repair, with no

damage thereto beyond normal wear and tear for

which Landlord would have no legal recourse against [*3]

Tenants; (emphasis added)

8. That the retention of herein stated sums by

the Landlord and the forfeiture of possession of

the items recited in paragraph two hereof by

Tenants shall liquidate any claim for damage to

the premises that Landlord may have against Tenants,

and that the parties hereby release forever one and

other from any and all claims whatsoever arising

out of Landlord's ownership or Tenant's possession

of the subject premises or in any way related to the

landlord-tenant relationship existing at any time

between the parties; (emphasis added)

...

At trial, the plaintiff testified about extensive damage caused to the premises by the defendants observed by him upon inspection after they moved to their new home in Arcadia, Florida. Numerous photographs depicting the alleged damage to and debris left at the home were admitted into evidence (see Plaintiff's Exhibit 3A). Plaintiff submitted receipts totaling $20,936 for the costs of materials and labor required to cleanup and repair the house, including the sum of $1,446 for unpaid utility costs (see Plaintiff's Exhibit 4, in evidence). Defendants did not appear and testify, nor did they present any evidence to the contrary, other than to argue that most repairs were occasioned by normal wear and tear or were performed to get the aged house fixed up for re-sale, which occurred sometime thereafter at a sale price of $390,000.

ISSUE

The threshold issue to be determined by the Court is whether

Plaintiff should be barred from any recovery in the instant lawsuit based upon the terms and conditions of the above Stipulation of Settlement.

ARGUMENT

In his post-trial submission, Plaintiff argues that Defendants violated paragraph 7 of the Stipulation. The Stipulation should be treated like a contract and be read in its entirety as a whole. Plaintiff argues that paragraph 7 comes before paragraph 8 and the two must be read consecutively as written. The provisions of paragraph 7 were violated prior to the provisions of paragraph 8 taking effect, and there could be no [*4]enforceable release provisions unless the foundational provisions and their respective obligations were first complied with. Since the proof showed that the premises were not left broom cleaned and in good repair the liquidated damages clause was without effect. Alternatively, Plaintiff argues that since paragraphs 7 and 8 of the Stipulation are inapposite or contradictory, and/or since enforcement of the Stipulation in Defendants' favor would be "unconscionable" and occasion an unjust or inequitable result which would defeat the purpose of the agreement, the Court should under its inherent power rescind or set aside the Stipulation.

In their post-trial submission, Defendants argue that pursuant to the Stipulation, the Plaintiff liquidated and released Defendants from any cause of action for alleged damage to the premises, notwithstanding the provisions of paragraph 7. The release in this case is clear and unambiguous on its face. The controversy that was being settled was the Plaintiff's claim for unpaid rent and potential claims for damage to the premises. The purpose of the Release was to settle the Landlord's claim for rent due and to "liquidate any claim for damage to the premises that Landlord may have against Tenants" and to preclude all future litigation between the parties "arising out of Tenant's [sic] possession of the premises or in any way related to the landlord-tenant relationship existing at any time between the parties." The Stipulation was supported by consideration which included the retention of the security deposit which included the pre-payment of one month's rent($3,150.00), the forfeiture of the right to collect interest earned thereon, and the retention by the Plaintiff of the appliances and appurtenances set forth in paragraph 2 of the Stipulation. Paragraph 7 was not a condition precedent for the liquidated damages clause since the Plaintiff did not exercise his right of inspection prior to the execution of the Stipulation, nor did he include an explicit reservation of his right to inspect the premises to determine its condition after specifically agreeing to unconditionally liquidate damages in the Stipulation.

CONCLUSIONS OF LAW

Our Court of Appeals has recognized that "stipulations of settlement are favored by the Courts and not lightly cast aside." Hallock v. State, 64 NY2d 224, 230. This principle favoring stipulations of settlement furthers important policy considerations, such as providing litigants with predictability and assurance that courts will honor their prior agreements, and promoting judicial economy by narrowing the scope of issues for trial. McCoy v. Feinman, 99 NY2d 295. To these ends, "a stipulation is generally binding on the parties that have legal [*5]capacity to negotiate their agreement and ... reduce their stipulation to a properly subscribed writing." Id.

A stipulation is a contract between the parties, and as such is to be construed according to general principles of contract law. The interpretation of an unambiguous contract provision is a matter for the Court, and the Court should not, under the guise of interpretation, imply a term which the parties themselves failed to insert, or otherwise re-write the contract. Unless there is sufficient cause to invalidate a contract - such as fraud, collusion, mistake, accident, duress, or unconscionability; or where the agreement is contrary to public policy or suggests an ambiguity indicating that the words did not fully and accurately represent the parties agreement - parties will not be relieved from the consequences of a stipulation made during litigation. Hallock, supra at 230; McCoy, supra at 302.

The Stipulation entered into by the Plaintiff and Defendants contains a release. Releases, like stipulations, are contracts and are construed according to the same general principles of contract law. Kaminski v. Gamache, 298 AD2d 361; Shklovskiy v. Khan, 273 AD2d 371, 372.

The instant "So Ordered" Stipulation of Settlement was prepared by the attorneys for the parties and was intended to be the basis for a final settlement of the Plaintiff's nonpayment petition which had been filed in the Yonkers City Court in August, 2004. The addition of paragraph 8 added a greater dimension to the settlement since by its clear and unambiguous terms the parties released "...forever one and other from any and all claims whatsoever arising out of Landlord's ownership of or Tenant's [sic] possession of the subject premises or in any way related to the landlord-tenant relationship existing at any time between the parties."

No inspection of the premises by the plaintiff was made prior to the execution of the Stipulation and no reasonable excuse for the failure to so inspect was testified to at trial. Presumably, the accumulation of the massive amount of debris and extensive structural damage to the premises testified to have been discovered by the Plaintiff following the Defendants' final departure, would have been discovered prior to the inclusion of the Release clause in the Stipulation. Although the "broom clean and in good repair" clause, seemingly in conflict with paragraph 8, was included in the stipulation, the Release clause, supported by ample consideration and with all its intended finality, is not made contingent upon compliance with the requirements of paragraph 7. See Block 1017, Inc. V. Goonetilek, 187 Misc 2d 858. [*6]Nor was any specific right to recourse to civil lawsuit for a future violation of paragraph 7 included in the stipulation. Nor does Plaintiff have any cause of action for breach of the lease provisions relating to leaving the premises "broom clean and in good repair" since by Plaintiff's own admission the Lease had not been renewed after it expired in May, 1998.

Accordingly, the Court finds for the Defendants in the instant matter and the Plaintiff's complaint is dismissed.

Submit Judgement on Notice.

All trial exhibits must be picked up at the office of my part clerk (Nancy Carlucci) within 30 days of the receipt of this Decision and Verdict and preserved for Appellate Review if necessary.

This shall constitute the Opinion, Decision, and Verdict of the Court.

Dated: White Plains, New York

October, 2006

__________________________________

HON. JOHN R. LACAVA, J.S.C. [*7]