Kahler v Kahler

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Kahler v Kahler 2020 NY Slip Op 31959(U) June 15, 2020 Supreme Court, Suffolk County Docket Number: 15-1525 Judge: C. Randall Hinrichs Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] .. 'f ORIGINAL SI IORl f (JftM Ol<DER INDEX No. CAL. No. SUPREME COURT - STATE OF NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY ... ...,. .... ~ PRESENT: Hon. C. RANDALL HINRICHS Justice of the Supreme Court MOTION DATE 12-20- 18 ADJ. DATE ------'::......:::.""-'"""--2-19-19 Mot. Seq. # 006 - Mot D --------------------------------------------------~-----------)( GENEVIEVE KAHLER. JAKUBOWSKJ, ROBERTSON. MAFFEI, GOLDSMITH & TARTAGLIA LLP Attorney for Plaintiff Plaintiff. 969 Jericho Turnpike Saint James. New York I 1780 •l \ .... - against - • SfNNREICH KOSAKOFF & MESSINA. LLP Attomcy for Defendant 267 Carleton Avenue. Suite 30 1 Central Islip, New York 11722 A~AKATILER. Defendant. ---------------------------------------------------------------)( Upon the following papers numbered I to -11. re.1d on this motion for enforcement of sculernent and attorney's fees : Notice of Motion/ Order to Show Cause and supporting papers -1.:2._; Notice of Cross Motion and supporting papers _ : Answering Affidavits and supporting papers I0- 13 ; Replying Affidavits and supporting papers11.:.!L; Other_: (1111d ttftci hellr i11g cou11sel irnupl'.)01t and opl'.)o>ied to the 111otio11) it i s. ORDERED that the motion by plaintiff Genevieve Kahler for, inter alia. an order granting , judgment in her favor in the sum of $26,595.93. fixing and determining any all credits due to plaintifT, ,. and granting plaintiff $7.500.00 in legal fees as a result of defendant Anna Kahler's breach of the ~ scttl.ement agreement dated July 12, 2017. and to direct a hearing to determin~ the reasonable legal foes '. incurred by plaintiff as a result of the breach is decided as follows; and it is ,. ... ' ·' ·ORDERED that plaintiff shall sen•e a copy of this order with notice of entry upon defendant • Anna Kahler by certified mail. return receipt requested, and upon defendant's counsel, Lisa A. Perillo, ..' by ordinary mail, within 20 days of the date of this order; and it is :.. .. ORDEREJ) that plaintiff shall file proof of such service with the Clerk of the Court within 10 days atler service has been effected; and it is furtht!r [* 2] ~ 1Kahler v Kahler ~, Index No. 15-1525 Page 2 · ORDERED that the Clerk of the Court shall set this matter down for a hearing on the first available date. Plaintiff Genevievt! Kahler commenced this action against defendant Anna Kabler to impose a constructive trust on real property localed at 486 Lombardy Boulevard, Brightwaters. New York. Prior to the start of the trial, on July 12. 20 I 7, the panics entered into a stipulation of agreement and ,settlement that was read on the record and so ordered by the Honorable W. Gerald Asher on July 27, 2017. Subsequently, defendant vacated the premises on July 7, 2018, and the premises were sold on October 1. 2018 for approximately $415,000.00. 'H1c terms of the stipulation. in pertinent parl. are as follows: l. 2. . : . 3. 4. ~ ' ... i, 5. The property is to be transferred from Anna Kahler. as sole owner. to the Genevieve A. Kabler Trust as owner via bargain and sale deed; Genevieve A. Kabler Trust. as owner, is to have 60% interest in the property and Anna Kahler is to have 40% interest in the property; The parties agree to place the property on the market for sale at fair market value on or before February 1, 2018, to distribute the net proceeds from the sale of the premises on a 60/40 basis, and to sell the property to first bonafide buyer offering a sum within 5% of the listing price or such different prices as agreed upon between the parties: Anna Kahler agrees to fully cooperate in facilitating the sale of the premises, including making the horn~ available to buyer's agent or inspection within 48 hours of a request from the listing broker, broker open houses, and the placing of for sale signs in the yard, and failure to do so will result in the installation of a locked box to help facilitate the sale of the premises; The sale of the premises to be delayed until after the graduation of Anna Kahlt!r's youngest son from high school, allowing Anna Kahler to exclusively reside in the home w ith he r children until July 7, 2018. and : 6. 7. '. 8. once an offer is accepted, the closing for the premises ~hall not occur before July 7, 2018; Anna Kahler is required to pay 100% of the carrying charges forthe house. including, but not limited to the real property taxes. including the town and village taxes and county taxes, landscaping. and all other expenses associated with the property while in residence: and if there are any balances owed for any carrying charge at the time of closing, Anna Kahler is solely responsible to pay same from hers.h are of the net proceeds: Anna Kahler shall provide Genevieve Kahler with proof of payment of real property taxes. county and village. and shall maintain the property in good condition until the sale of the property. and perform reasonable repairs until the date of closing; No substantial changes or alterations are to he made to the home that will substantially reduce the value of the properly, require a permit or [* 3] .i<.ahlet 'v Kahler -Index No. 1S-1525 Page3 9. I0. 11. 12. 13. ¢ertificate of occupancy, and neither party wiU do anything ~o encumber 1he property; . ·· Anna Kahler is to add the trust as an addjtionaJ insured on tne homeowner's insurance policy; . Anna {(ajtler, upon vacating the p>roperty, is to foave the property in broom clean and vacant condition; : Parties ate to share in carrying charges ort the:premises on a 60/40 b~js from the date Anna Kahler indicates the pr6p~rty is broom ·clean, vacant and prepared to turn over to. a p1:1rchasers; In the event there ;ife any legal or Court fees ag\}ipst either party as a resu.lt of the party?s failure eoopera(e, the fees shall b.e 9edi,tcted from the party's share of the settlement and not fr.om tne gr9ssptoceeds; and The defaulting party slu1U be Uable and pay td other reasonable attorn~y fees for enforcing such performance. · · to Plaintiff now moves, t,Jy order to show cause, for ~n order awarding judgment in her favor in the amount bf $26,595.93 on the basis that dQfen~t breached th~ so:-oljdered stipulatfon 6fsettlement Plaintjff.alleges tlu1,t defendant breached not only the ex,pressed language of the !igreement, but also the spirit of th~ agr¢ement; because she refused to cooperate in goc)d f'lith in showing the ~µbject premises, failed to ke~p the premises in good condition, and reft,1Sed to vacate tjie subjeGt prem.i$es ~ntil there was a meeting between herself, plaintiff's attomey, and an attorney, who alleges he did not reptes1;mt defendant, hut is a friend of the family h<;>pip.,,g to expedite a resolution. Plajntjff asserts that, folloWi[!.g the meeting; plaintiff ipltially agreed to sign the c<;>nttact of sale for the premises a,nd later, after additional discussions;11gteed to sigp a document indicating that she has surrendered po~sion of the property. Plaintiff contends that defertc;htn.t cU4 not share in the apportio:pp::ient of the legal wortc in representing fhe seller as required under the settlement, alth9ugli she did agr~ to allow plaintiff's attorney .to deduct the fees from the proceecjs for plaintiffs attorney p~tfopp.iftg all pf the legal work for the closing. In additioa, plaintiff seeks to have the matter s¢t c;iown for a hearing to determine the reasonable legal fees ciue. as a result of defeµ~t's brea<0:h. In support of~P.e motioh, plaintiff's S\il?µiit a ~opy of the so ordered stipulation dated July l~. 4017, the affidavit of Michael Kahler, copies of_the teceipts for payment of the bills allegedly accrued in r~g~rds to this matter, a letter, dated June 18, 2018, from the listing broker for the property, i anya Fuchs, and the sign~ escrow agreement, datet;l October 1, f0~:8i petw.een Michael Kahler, as Trustee of the Genevieve A. Kahler Trust, ~c;I A,pna Kahler, he,>ld41~ the sum. of'.$i6,595.93 in escrow. ( .. . . . · Defendant opposes the motion oh the ground that tQ.e relief sought by plaintiff overla,Ps and should JlOt be so~t cumulatively. Specifically, defendant contends .th~t the s~ip~lationstates that from the date she vacated the premises on july 7, 2018 until the dosing on October 1, 20i 8, sQ.~ ~fld plaintiff w~re required to share in tb.e carrying cost of the premises on a 60/4() basis, aad that she has IiQt ~n provicl,ed with the lindetlying receipt~ of the biils allegedly U:lc\lrred by plaintiff in com1ection with lh' sale of f:he premises. U6wever, defendap.t does admit that she owes tli~ Town of Islip ~es from fanuary 2018 thrQugh July 7, 2018, phis the asso¢iated late charges; in the ~niol:int of $106.58. Def~.od~t further ~ss~ that plaintiffhas p.ot proper.ly laid the foundation to recoup attorney's fees, 'Qecause the Col:l.rt I r. ,. • I,., + [* 4] .. Kahler v.Kahler Index No. 15-1525 Page4 failed to explain to her, a prose defendant in the underlying c;tetion, the s.h.iftjng of attorney's fees in the agre~ment despite explaiJljng the substan~e of the agr~inent, since the aJ:locution of the agreement was 9one by plaintiff's attorney. ·In opposition to the rnotion, defendant sµbmits her OWQ affidavit. Michael Kahler, who is the trustee of the Genevieve A. Kahl~ Tfl:lst, and th~ son of Genevieve Kahler, has submitted ~ ~ffidavit on t;ebajf of pl~ntiff and in suppc}.rt of the motiOJ\. Michael Kahler sta~s In his affidavit that ~ a result of the settlement and his statqs as trustee h¢ w~ compellec;l to advan<?e ~rtain sums as a· result of defendant's' breach of the settlemen,t agreement Michael Kahler States . ..~hat defend~. a5 a result of the stipulation, was required to add the trust as an additional ill$Ufed on tb.e honieowner's insui:ance policy, and that, despite n1,1m(fr-0us requests, sh~ fa.Bed to do so, causing him fo adv~ce the-sl:1D1 of $1,791.00 to ·precure the insilrance. H¢ states that when defendant vacated the pr~ipises she failed to leave it in broom clean condition, whieb resulted in him haVing to -rent a dumpster to remove the debris that W&S Jeft behind, and that she failed to p}ajnt-ctjn the lap<h!caping. pay the utilities and th~ tµ:es. Michael Kahler s~es that he had to pur.chase a ba¢kup g~llerator, propaJle tank, and 'regulator, because defendant removed the items from the property. He states th~ he was required to reimputse Ir potential hayer $500.00 after defendant refuSed to allow the ptirchaser's neme inspector to enter the home. Micha,~i K.a;hler further st~tes that he was unable to market fue property until defendant vacated the premises, which finally was accomplished with the efforts of his attorney, r~sultin$, in additional fees bilied to the trust · . Defendant in her affidavit states that she owes the Town ofl&lip taxes if'!. the amount of $l06.58 fr9.cn ~ai,.uary 2018 through July 7, 2018, that she does not owe the Village of Brightwaters truces in the iJmQqht of$1,648.QO, sinee the amount wa5 billed in Jtdy and she .va¢ated the premises by July 7, 2018, {Uid_t~t· s1'~ does not owe $650.00 plus~ service fee of $60.74 to the Suffolk County Water Authority {SC'Y{f\} pefendanf explains that this expe&se was not contemplated by the stipajation because wh¢n the P&mise.s..originally were built, the original owner failed to coMeet the meter as required ancl the pver$!ght Qnly wa5 recenUy discovered by her brother, Mich~el l<ahfor, prior to selij.ng the pr~mises. ~h~,s~tes that she does not owe National Grid the sum of $23.56 or total of $110.83 to PSEG, since ~(fr bi.!Js were completely paid when she vacated the premises, and plaintiff has not provided her with a any doctirnentation to show how the am.ounts were;: calc~lated. Defendant states that she qoes not owe $465.00 for.-the recording of the deed fOr the premises; and, again, plaintiff has not prov.ided her any docWJieatation or i:eceiptiag concerning this ex~nse. Additi0nally, defendant states that she is not r-esponsiple for the $500.00 cost of the home inspection that her brother, Michael Kahler, reimt>ursed to potential buyers, because she had to undergo emergen~y liiser eye surgery for a tom re~na on ttie date of the iI1$pection. She states she was informed the morping of the inspection about the emergency, that she phoned the realtor at approximately 1:00 1pn. t~. ~fonn her the 4:30/5:00 p.m. inspection needed t-0 be rescheduled, but her r.equest was ignored. p~f~nda;nt sta,tes that the $8,'996.00 cos' of the generator was not incluc,ied mthe description of the house )>ihei it:was risted, tha,t it .is not a fixture of the ho\:lse, and that, ~pproximately thre~ years ago, while $he tin~ :~ei: ·sons were op vacation, and her mother, Genevieve Kahler, moved from the premises, the ~ene~9.r qiscwpeared; therefore, she does not owe \his amount. She also states that her brothers ¢anged· to ·have the genei'atQr re{lloved from the h6me. She states that the .propane tank w~ Feqted and that :p~or tO vac~ting the premises she m/ormed her propane supplier. that she was moving and the . [* 5] l\ . i·i ~a~ler \! Kahler li1dex No. I 5- I 525 pag~j. l > i.i.; •. ~uppltcr·carrie and removed the tank. so she does not owe the amount of $4 76.62, the cost to replace the tank ahd regulator for propane gas. Furthermore, defendant states that she fully compiled with the requirement to add the trust onto the home insurance. therefore. she is not Iiablc for the $1, 791.00 that plaintiff paid to obtain insurance for the home, and nor. does she owe $280.00 for landscaping, since she o ffored to pe~fonn the landscaping once a week. but her brother, Michael Kahler, infonned her that he would take care of the cost of the landscaping. She further states that she does not owe $335.00 for the cost of the dumpster. because she fully complied with the st ipulation, leaving the home in good. clean. and orderly condition. and that the items left in the home belonged to her mother or the prior owner. Lastly, defendant states that she did not agree to pay for attorney's fees, that the stipulation does not contemplate it. and that if, she owes any money for any of the items based upon the stipulation, she only ?\vcs a percentage, 40%, for any amounts due from .July 7. 20 18 through October I, 2018. t . .' A n oral stipulation of settlement made in opl!n court and stenographically recorded is enforceable ~s. a contract according to its tenns, and governed by principles of contract law for its interpretation and 9rre.c t (Tp um of Wflrwick 11 Black Bear Cll111pgro1111ds, 95 AD3d 1002, 943 NYS2d 608 [2d Dept 20 1 2)tjsl~awhati v Zamltmi. 82 AD3d 805, 918 NYS2d 173 L2d Dept 201 1]; Matter of Weiss v Weiss, ~89. 1)P2d 49_8. 735 NYS2d 582 [2d Dept 200 I]; Cum ice/Ii v Came/Ii, 205 AD2d 726. 6 13 NYS2d y02[2p Dept) 994 ]). The role of the court is to determine the intent and purpose of the stipulation based pn an ·examh1ation of tht! record as a whole (see Maller of O'Rouke, 98 AD3d 11 20, 95 1 NYS2d I 81 [2d p~pt 201,2]; K"ppie 11 Koppie, 62 AD2d 666, j2d Dept 2009]). Therefore. a breach of a settlement itgrecment is governed by the same law generally applicable to breach of contract (Eichler v Tow11 of Cortll111tft, 39 A03d 464. 833 NYS2d 216 [2d Dept 20071). "The essential elements of a cause of action to recover damages for breach of contract arc the existence of a contract. the pl a inti ff s performance pursµ~nt to the contract, the defendant' s breach of its contractual obligations, and damages resulting from the breach" (El-Na/la/ v FA Mgt. , 126 AD3d 667. 668. 5 NYS3d 201 , 202 r2d Dept 20J 5J). Here. an examination of the stipulation of settlement entered into between the parties and the record a whole establishes a clear and unambiguous intent expressed by the parties that the property, ~hich \.Vas to be sold. would be transferred to defendant and the Gencnieve A. Kahler Trust, with the fr~1sl o"v'ning .60% of'the property and defendant owning 40%.; that defendant was required to vacate the ~ubjecf prejnises on July 7. 2018 ~ that defendant was required to leave the premises in broom clean and vaoilnt 'cpn9ition~ that defendant was to pay all carrying cost while occupying the residence; that ~efen~atlt was not to make any substantial changes to the property that would result in a reduction of its yalu~·and .that defendant was Lo fully cooperate with the listing broker in selling the premises. Thus. based 'upon.the adduced evidence, plaintiff has established that defendant clearly failed to comply with tl}e terms of the stipulation, which led to plaintiff incurring additional expenses (see Tuiv11 of Carmel v Me/elmer. ·105 ADJd 82, 962 NYS2d 205 [2d Dep t 20131: Koppie v Koppie, supra; F11ki/11u111 v 31st ~ve. Rea.l(l' ·Corp. , 39 AD3d 812. 835 NYS2d 343 12d Dept 20071). Contrary to defendant's contention th,at she only is required to pay 40% of any of the expenses that arose frµm the time she vacated the premises until the closing, the 60/40 split between plaintiff and defendant as contemplated by the stip~lation only is triggered once plaintiff indicates the property is broom clean, vacant and prepared to tum over to a purchaser. However. this provision in the settlement did not become operational, because defendant failed to leave the premises in a broom c lean and vacant condition. ready to tum over to a purchaser, and thus. defendant is liable to plaintifT for the expenses he incurred to prepare the house to as ,. i\. ll. \ ~~ : . , '· r;. [* 6] Kahler v Kahler Index No. 15-1525 page6 sell. ln addition. it is clear from the evidence submitted that defondant was not cooperative in ensuring fhat the property sold in a timely fashion to a buyer who was ready, willing and able to purchase the P,roperty.".at the listed price. Although defendant submits evidence to show that she did comply with the requirement to add ihe trust to the ex isting homeowner's insurance, a letter dated February 5, 2018 was sent to defendant by plaltit_itr s ~ounscl informing her that she was in default of the settlement agreement for fai ling to amend the hqm~owner's insurance to add the trust. and yet, plaintiff failed to submit any documentation to plaintiff to·resolve the i ssu~. Therefore, plaintiff is entitled to reimbursement in the amount $1.791.00. ' . And since the stipulation states neither pa11y shall do anything to encumber the property or to make any substanlial changes or alterations to the home. resulting in the substantial reduction of the yalue ofthe property. or requiring a pennit or cl!rtificate of occupancy, plaintiff also is entitled to 1:cimbursemcnt in fu ll for the fo llowing items since the property was not salable without such: s·cw A ($650:00 plus service cost of $60.74); Taxes for the Town oflslip ($10.759.13) and the Village of ~rightwaters ($1 ,648.20); the recording of the deed (S465.00). the Home Inspection ($500.00), the cost t~ rcpl~ce the generator ($8,996.00), and the dumpster for debris removal ($335.00). ' i:iowever, in regnrds to the bills for landscaping ($280.00), National Grid ($23.56). and PSEG ($I l_0.83). these bill are to be shared between the parties on a 60/40 split, since the stipulation says defe11druit is responsible for any carrying charges at closing. and the bills submitted by plaintiff show ~l~at ·at the time defendant vacated the premise, the balances on the above listed utilities were zero. Thus, dcfen(fant i~ responsible for the payment of $112.00. $9.24. and $44.33 to plaintiff. Moreover, since ~cfon4,afit established that the propane tank was rented and that her propane supplier removed the tank \lOCe s}1e ·vacated the premises, det.endant is not required to reimburse plaintiff for the installation of a new propane tank. ,1 Finilly, the stipulation clearly provides for the allocation of attorney's fee in the event of a breach or default by either party of the agreement. Therefore, plaintiffs attorney is entitled to reasnnable attorney's fees based on the legal representation provided as a result of plaintiffs breach of the agr~ement (see e.g. Matter of Ru tit S.(Slwro11 S.). 125 AD3d 978. 5 NYS3d 135 [2d Dept 20 I Sl: Sweeney v$wee11ey. 71/\D3d989. 898 NYS2d 560 [2d Dept 2010]). According. plaintiff's motion is granted to the extent that he is entitled to a money judgment in the amount of $25, 205.07. plus attorney's fees. The matter shall be set down for a hearing to determine t~e reasoi1able legal fees due plaintiff's attorney. ~'.~.~~::' ~~f 1r, 10 20 [ _ jlf£'.ij~,~ ~ FI NAL DISPOSITION _X_ NON-FI NAL DISPOSITION

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