Trama v Trama
Annotate this CaseDecided on June 12, 2007
District Court of Nassau County, First District
Gasper A. Trama, Jr., Petitioner(s)
against
Thomas Trama, Respondent(s)
SP 4765/05
Adam H. Moser, Esq., Attorney for Respondent, 11 Clinton Avenue, Rockville Centre, New York 11570, 516-766-1619; Bernard Goldstein, Esq., Attorney for Petitioner, 72 Main Street, Hempstead, New York, 516-486-1810.
Scott Fairgrieve, J.
Petitioner Gasper Trama and his wife, Beatriz Trama, purchased the residential premises at 12 Hillside Avenue, Lynbrook, New York, in 1993, as tenants by the entirety. Sometime thereafter, respondent, Thomas Trama, moved in as a licensee and occupied a room on the first floor. On September 19, 2005, a Thirty-Day Notice to Quit was served upon the respondent and subsequently a summary proceeding was commenced by Gasper Trama, pursuant to RPAPL 713(7). The petition was returnable October 24, 2005. On February 6, 2006, the parties and their counsel entered into a Stipulation of Settlement wherein it was agreed that a judgment of possession and a warrant of eviction should issue with a stay until March 31, 2007, unless the parties' mother should pass away in the interim, in which case respondent was to vacate the premises within 30 days of such passing. On July 11, 2006, the petitioner himself died and Beatriz Trama became the sole owner of the property as a matter of law. On August 17, 2006, the respondent, under circumstances not disclosed by either party, executed a general release to the petitioner's estate, his wife, Beatriz Trama, and Trama's Auto School. The release provided however that the parties' obligations under the settlement agreement were not to be released but were to remain in effect and binding.
Respondent failed to vacate the premises on March 31, 2007 and instead brings this motion to vacate the judgment and warrant and set aside the settlement agreement. He argues that petitioner's wife must bring a new proceeding to evict him and that the agreement is not enforceable by Beatriz Trama as she was not a party to it.
When the effect of a settlement and stipulation is the termination of the original proceeding, a new contract is made and the sole remedy for its enforcement is a plenary action on the contract. (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 NY 435; American Progressive Health Ins. Co. v. Chartier, 6 AD2d 579) Only if the original action or proceeding is still pending may the party aggrieved seek therein summary relief by motion with respect to the stipulation. (Goldstein v. Goldsmith, 243 App.Div. 268) The same is true where the proceeding was terminated upon the execution of the warrant of eviction. (Klugherz v. Sutphin [*2]Food Shop, Inc., 91 Misc 2d 262; Yonkers Fur Dressing, Inc. v. Royal Insurance Company, Ltd., 247 NY 435; Matter of Creamer, 37 AD2d 33, Adams v. George T. Cantrello, Inc., 29 AD2d 559) If however, as here, the proceeding is not unconditionally disposed of, the Court retains jurisdiction to entertain an application to set aside the agreement. (Geletey v. Sea Gull Food Market, Inc., 108 Misc 2d 670) Accordingly, the Court will entertain the respondent's application.
A stipulation which is either written and subscribed by the parties, or entered into in open court, is enforceable against either party as a contract. (CPLR 2104) The rational for this rule was articulated by the Court in Hallock v. State, 64 NY2d 224, where the court observed:
Stipulations of settlement are favored by the courts and not lightly cast aside (see Matter of Galasso, 35 NY2d 319, 321). This is all the more so in the case of "open court" stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1, 10) within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (Matter of Frutiger, 29 NY2d 143, 149-150).
See also In re Siegel, 29 AD3d 914.
Respondent has failed to articulate any basis upon which the Court can or should vacate the Stipulation of Settlement. In the absence of evidence of fraud, collusion, mistake, or accident, the motion to set aside the Stipulation of Settlement is in all respects denied.
It is well settled that a spouse, even though a co-owner and a tenant by the entirety with the petitioner, is not a necessary party. Either one of two co-owners may maintain a summary proceeding to gain possession in his or her own name. (Baker v. Westfall, 30 Misc 2d 946; Martin v. Shields, 285 App.Div.106; Burack v. I. Burack, Inc., 128 Misc 2d 324; Panzica v. Cimino, 21 Misc 2d 1076) It is also well settled that a cause of action for possession of real property may continue after the death of a petitioner and may be maintained by one entitled to possession of the property. As noted in McKinney's commentaries to CPLR 1015, Book 7B, by Vincent C. Alexander C1015:2, at pg 199:
The substitution that is mandated by CPLR 1015(a) applies only when the particular cause of action survives the death of the plaintiff or defendant. If the claim abates as a result of a party's death, obviously no substitution is required because the cause of action is automatically extinguished.
Today, however, most claims survive. Actions involving contracts and property rights traditionally have survived death (NY EPTL 11-3.1), and tort actions for personal injury and property damage were brought within the rule of nonabatement in 1935 (EPTL 11-3.2). In contrast, most matrimonial actions are extinguished if one of the spouses dies prior to the entry [*3]of judgment. See Hoff v. Dugan, 1943, 266 A.D. 790, 41 NYS2d 691 (2d Dep't).
Substitution should be granted pursuant to CPLR 1015(a) where the record establishes an owner's right to prosecute this proceeding. (Medallion Auto, Inc. v. Sanders, 272 AD2d 85) In addition, there is a strong public policy that litigated matters be disposed of on their merits and the Court may, in its discretion, sua sponte order substitution of a proper party pursuant to CPLR 1015 (subd [a]). (Paul v. Ascher, 106 AD2d 619) Inasmuch as Beatriz Trama, as a co-owner and a tenant by the entirety, was always a proper party, though not a necessary one, and since she is now the sole owner of the premises, as a matter of law, the court sees no reason not to order her substitution. In view of the release given by the respondent with its proviso that the Stipulation of Settlement continue in effect despite the death of Gasper Trama, the respondent would seem to be estopped from disavowing it now. (Zemel v. Horowitz, 11 Misc 3d 1058[A] ) There is also no reason why Beatriz Trama, as a tenant by the entirety and now sole owner, should be in a worse position than if she had been named as a petitioner at the time the proceeding was commenced. Since Beatriz Trama is entitled to all the rights appertaining to her ownership status (Polestar Fifth Property Associates Llc, V. Philips International Holding Corp., 2002 WL 538473 (N.Y.Sup.), 2002 NY Slip Op. 50116[U]), the Court will direct her substitution as petitioner in the instant matter and beneficiary of the settlement agreement heretofore entered into by the respondent.
Accordingly, it is
ORDERED that Beatriz Trama is hereby substituted as petitioner in the instant proceeding pursuant to CPLR 1015(a) and the clerk is directed to endorse the file accordingly; and it is further
ORDERED that, if so advised, petitioner Beatriz Trama may submit a new Judgment and Warrant of Eviction, bearing her own name, and that the Sheriff shall execute said warrant forthwith.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated: June 12, 2007
CC:Adam H. Moser, Esq.
Bernard Goldstein, Esq.
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