Deutsche Bank Natl. Trust Co. v Bareja

[*1] Deutsche Bank Natl. Trust Co. v Bareja 2010 NY Slip Op 50278(U) [26 Misc 3d 1226(A)] Decided on February 24, 2010 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2010
District Court of Nassau County, First District

Deutsche Bank National Trust Company, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC4, Petitioner(s)

against

Anita Bareja, "JOHN DOE", MONIQUE FRANCIOX, Respondent(s).



SP 2709/09



Steven J. Baum, P.C., Attorneys for Petitioner, 220 Northpointe Parkway, Suite G, Amherst, New York 14228, 716-204-4600; George M. Gavalas, Esq., Attorney for Respondents, 1565 Franklin Avenue, 2nd Floor, Mineola, New York 11501, 516-746-1515.

Scott Fairgrieve, J.

FACTS

On March 31, 2009, Petitioner Deutsche Bank National Trust Company, as trustee for Morgan Stanley, purchased the subject property located at 162 Miriam Parkway, Elmont, NY 11003 at public auction. On April 16, 2009 a ten day notice to quit was conspicuously served at the subject property, 2nd floor, wherein Respondent Monique Franciox resides.

A holdover proceeding was brought on May 4, 2009 and a stipulation of settlement was executed on June 5, 2009. A purchase contract rider to the stipulation reads:

Occupants, or a third party ("Offeror"), have expressed an interest in purchasing the Premises in its currently occupied condition. The Offeror may submit an offer by contacting Mike Carroll at (631) 321-9203. Owner reserves an unconditional right to reject any purchase offer. No representation is made that a purchase offer will be reviewed by Owner and/or accepted or rejected prior to the Vacate Date. Owner's failure to offer a purchase contract shall not be grounds to restore this proceeding or vacate any settlement herein, unless Respondent is willing to accept the good faith evaluation made by Petitioner's representatives.

Solely, as an accommodation to Occupants, Petitioner agrees that, should the vendee to a fully-executed purchase contract make a written request, the Vacate Date will be extended, Sept. 6 but no more than sixty (60) days from contract execution. Petitioner's representative will evaluate the premises with 20 days from the date hereof. Access shall be given by calling attorney for Respondent at (516) 746-1515. Respondent represents that no one residing in this dwelling unit is in active military service of the United States or New York State, nor is any Occupant dependent on such a person. [*2]

Subsequent to the stipulation and a seventy-two (72) hour eviction notice, the Respondent's counsel filed an order to show cause on October 2, 2009 alleging that the Petitioner breached its obligation under the stipulation by: (1) failure to inspect and evaluate the premises within 20 days of the execution of the stipulation; (2) failure to forward their evaluation and a contract of sale.

In its opposition, the Petitioner maintains it cannot be compelled to sell to the Respondent the premises and only agreed to consider her proposal. Additionally, it is maintained that the Court does not have jurisdiction to force a sale.

BREACH OF STIPULATION

Respondent claims the property was inspected on August 14, 2009, approximately seven (7) weeks after the time agreed upon in the stipulation, and the Petitioner has not disputed this. Thus, Petitioner breached its obligation pursuant to the stipulation by not having the premises evaluated within twenty (20) days. More importantly, there is no evidence that Petitioner forwarded to the Respondent a good faith evaluation made by Petitioner to afford Respondent the opportunity to purchase the premises.

CPLR 2104 states that a stipulation is binding upon a party when "in a writing subscribed by him or his attorney." Further, as the Court of Appeals of New York stated in IDT Corp. v. Tyco Group (13 NY3d 209, 918 NE2d 913, 890 NYS2d 401):

'[a] condition precedent is 'an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises' (Calamari and Perillo, Contracts § 11-2, at 438 [3d ed.]; see, Re-statement [Second] of Contracts § 224; see also, Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 112-113, 472 NYS2d 592, 460 NE2d 1077). Most conditions precedent describe acts or event which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see, M.K. Metals v. Container Recovery Corp., 645 F.2d 583) " ( Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690, 636 NYS2d 734, 660 NE2d 415 [1995] ).

Thus, as Petitioner has not performed the condition precedent to enforcement of the warrant of eviction, this Court determines that Petitioner intentionally breached the stipulation of settlement to which Petitioner is bound (see CACV of Colorado, LLC. v. Atekha, 24 Misc 3d 1250[A], [N.Y.City Civ.Ct. 2009]). Petitioner is stayed from evicting Respondent until there has been full compliance by Petitioner with each and every term of the stipulation of settlement.

CONCLUSION [*3]

Petitioner is stayed from evicting Respondent until there has been full and complete compliance with the stipulation of settlement.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:February 24, 2010

CC:George M. Gavalas, Esq.

Steven J. Baum, P.C.

SF/mp