Manhattan Coll. v Akinbola-Lee

[*1] Manhattan Coll. v Akinbola-Lee 2008 NY Slip Op 50337(U) [18 Misc 3d 1137(A)] Decided on February 26, 2008 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2008
District Court of Nassau County, First District

Manhattan College, Plaintiff,

against

Modupe Akinbola-Lee, Defendant.



22286/04



Attorneys for plaintiff:

Law Office of Tracy J. Murphy, PLLC

pro se defendant:

Modupe Akinbola-Lee

Andrew M. Engel, J.

The Plaintiff commenced this breach of contract action on or about June 15, 2004. The Defendant answered on June 16, 2004. On November 4, 2004 the parties entered into a Stipulation of Settlement, ("the Stipulation") "so ordered" by the court (Cooper, J.), providing, in pertinent part:

2.DEFENDANT ADMITS THAT SHE IS INDEBTED TO PLAINTIFF IN THE AMOUNT OF $11,768.46 FOR UNPAID TUITION, COLLECTION COSTS AND ATTORNEY'S FEES.

3.DEFENDANT AGREES TO VOLUNTARILY PAY THE SUM OF $5,000.00 IN MONTHLY INSTALLMENTS. SUCH INSTALLMENTS BEGIN WITH A FIRST PAYMENT OF $25.00 TO BE RECEIVED AT THE OFFICE OF THE PLAINTIFF'S ATTORNEY NO LATER THAN JANUARY 30, 2005. PAYMENTS ARE DUE NO LATER THAN 30th OF EACH MONTH.

4.DEFENDANT AGREES TO INCREASE THE MONTHLY PAYMENT AMOUNT TO $50 PER MONTH ON JANUARY 30, 2007.

5. PLAINTIFF AGREES TO WITHHOLD ENTRY OF JUDGMENT SO LONG AS DEFENDANT'S PAYMENTS ARE RECEIVED NO LATER THAN 10 DAYS AFTER THEY ARE DUE.

7.PLAINTIFF HAS THE RIGHT TO ENTER JUDGMENT AGAINST DEFENDANT [*2]FOR THE FULL AMOUNT OWED. IF DEFENDANT DEFAULTS AND SUCH DEFAULT IS NOT CURED AFTER 10 DAYS WRITTEN NOTICE. ALL PAYMENTS WILL BE CREDITED TO DEFENDANT'S ACCOUNT.

8.PLAINTIFF AGREES TO SEND REGULARLY (sic) CORRESPONDENCE TO DEFENDANT STATING THE AMOUNT OF DEBT, HOWEVER, IT IS DEFENDANT'S RESPONSIBILITY TO KEEP PLAINTIFF'S ATTORNEY INFORMED OF ANY CHANGE OF ADDRESS.

On April 17, 2006, alleging that the Defendant had defaulted in making the payments called for in the Stipulation of Settlement and had failed to cure such default after ten (10) days written notice to cure, the Plaintiff submitted a judgment to be entered in the total sum of $11,768.46. A judgment in that sum was entered on April 20, 2006. The Plaintiff did not send the Defendant notice of the entry of this judgment until November 5, 2007.

The Defendant now moves to vacate the judgment entered against her. The Defendant alleges that the Plaintiff breached the Stipulation by failing to send her regular correspondence stating the amount of the debt in accordance with paragraph 8 or notice of default in accordance with paragraph 7. The Defendant further alleges that she made payments to the Plaintiff until on or about April 12, 2007, approximately one (1) year after her alleged default and the entry of the judgment against her.

The Plaintiff alleges that the Defendant defaulted under the Stipulation, having failed to make her March 30, 2006 payment, although a ten (10) day notice to cure was allegedly sent to the Defendant on April 4, 2006. Plaintiff admits having received payment on April 17, 2006, the same day the judgment was submitted for entry, although Plaintiff denies having knowledge on that day of such payment. Plaintiff does not comment on whether or not it became aware of this payment before judgment was actually entered on April 20, 2006.

The Stipulation is a contract, which will be enforced in accordance with its terms, Charter Realty & Development Corporation v. New Roc Associates, L.P., 293 AD2d 438, 739 NYS2d 456 (2nd Dept. 2002); EMC Mortgage Corporation v. Bobb, 296 AD2d 476, 745 NYS2d 204 (2nd Dept. 2002) "It is well-settled that when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized (citations omitted)." John E. Andrus Memorial Home v. De Buono, 260 AD2d 635, 688 NYS2d 687 (2nd Dept.1999); see also: Johs v. P.G.S. Carting Co., Inc., 40 AD3d 929, 837 NYS2d 676 (2nd Dept. 2007); Yonkers Contracting Company, Inc. v. Romano Enterprises of New York, Inc., 40 AD3d 629, 835 NYS2d 363 (2nd Dept. 2007) Moreover, "[a] contract should not be interpreted in such a way as would leave one of its provisions substantially without force or effect (citation omitted)." John E. Andrus Memorial Home v. De Buono, supra .; see also: McCabe v. Witteveen, 34 AD3d 652, 825 NYS2d 499 (2nd Dept. 2006); T.M. Bier & Associates, Inc. v. Piraino, 16 AD3d 578, 790 NYS2d 884 (2nd Dept. 2005)

The Plaintiff suggests that the Defendant's payment which was received on April 17, 2006 was three (3) days late, having been received on the thirteen (13) days after the Plaintiff allegedly mailed its ten (10) day notice to cure. The Plaintiff argues that the phrase "AFTER 10 DAYS WRITTEN NOTICE" contained in paragraph 7 of the Stipulation must refer to ten (10) [*3]days after the date of mailing of such notice, because it must be read in conjunction with paragraph 5 of the Stipulation, which provides that the Plaintiff will not enter judgment "SO LONG AS DEFENDANT'S PAYMENTS ARE RECEIVED NO LATER THAN 10 DAYS AFTER THEY ARE DUE." Plaintiff argues that any other interpretation would render paragraph 5 meaningless. The court does not agree.

The Plaintiff's suggested interpretation would actually render paragraph 7 of the Stipulation meaningless. If, as the Plaintiff suggests, paragraph 5 sets the absolute last day by which a payment could be made as ten (10) days after the thirtieth (30th) of each month, there would be no need for the Plaintiff to send a ten (10) day notice to cure. Under the Plaintiff's interpretation, if the Plaintiff never sent a ten (10) day notice to cure, as mandated by paragraph 7, the Plaintiff would still be entitled to enter a judgment ten (10) days after the thirtieth (30th) of each month. The only logical interpretation of these two (2) paragraphs, which gives meaning and effect to each, is that the "10 DAYS AFTER THEY ARE DUE" stated in paragraph 5 refers to the ten (10) days after the notice to cure is served. What neither paragraph addresses is whether these ten (10) days are to be measured from the mailing or the receipt of the notice.

Relying on CPLR § 2103(b)(2), the Plaintiff suggests that the ten (10) days to cure a default in payment must run from the mailing of the notice to cure. The Plaintiff's reliance on this section is misplaced. CPLR § 2103(b)(2) addresses the service of paper in a pending action upon an attorney. Moreover, the balance of that section, to which the Plaintiff makes no reference, provides that "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period[.]" Applying that section to this case, as the Plaintiff suggests, the Defendant's payment would not have been due until April 19, 2006. Applying the Plaintiff's reasoning, having acknowledged receipt of the Defendant's payment on April 17, 2006, the entry of the judgment was improper.

Cadlerock Joint Venture, L.P. v. Rubenstein, 26 A.D.23d 219, 812 NYS2d 469 {26 AD3d 219} (2nd Dept. 2006), upon which the Plaintiff relies, is inapposite. In that case, it is undisputed that the Defendant's payment was made after the cure period had expired. Moreover, the court therein found that enforcement of the stipulation was not unjust, citing McKenzie v. Vintage Hallmark, PLC, 302 AD2d 503, 755 NYS2d 288 (2nd Dept. 2003), in which the court held, "literal enforcement of the terms of the stipulation of settlement is not unjust in this case, where the agreement was negotiated by sophisticated parties, all of whom were represented by counsel and the default was neither inadvertent nor trivial (citations omitted)." It is also noted that in McKenzie, id. the defendant's seven (7) day period to cure its default clearly ran from the defendant's receipt of the notice to cure.

In the case before the court, the Defendant was neither sophisticated nor represented by counsel. Moreover, while it appears that the Defendant's March 2006 payment was made within ten (10) days of her receipt of the Plaintiff's notice to cure, even accepting the Plaintiff's argument that it was received thirteen (13) days after the mailing of the notice to cure, the court finds that this purported late payment was "inadvertent and minor in nature when measured against the harsh result which would obtain upon literal enforcement of the default provision in the stipulation."Bank of new York v. Forlini, 220 AD2d 377, 631 NYS2d 440 (2nd Dept. 1995) ; see also: Woody's Lumber Co., Inc. v. Jayram Realty Corp., 46 AD3d 804, 847 NYS2d 643 (2nd Dept. 2007) Given the fact that the Plaintiff acknowledges actually receiving the Defendant's payment on the very day it submitted the judgment to be entered and took no steps to withdraw [*4]that proposed judgment, which was not entered until three (3) days later, "the plaintiff's conduct could be interpreted as an attempt to enforce a technical default to obtain the unwarranted payment of additional moneys beyond that agreed to in the stipulation, and the defendant is entitled to vacatur of the judgment(citation omitted)." Weitz v. Murphy, 241 AD2d 547, 661 N.Y.S.2d 646 (2nd Dept. 1997)

Accordingly, the Defendant's motion is granted; and, it is hereby

ORDERED, that the judgment entered against the Defendant, Modupe Akinbola-Lee on April 20, 2006, in the sum of $11,538.46, is hereby vacated; and, it is further

ORDERED, that any and all restraints upon the assets of the Defendant, Modupe Akinbola-Lee, based upon the aforesaid judgement are hereby vacated as well.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

February 26, 2008

___________________________

Andrew M. Engel

J.D.C.