Decided April 16, 2008.
Fischman Fischman, by Lon Paul Fischman, Esq., for petitioner.
Paul W. Siegert, Esq., for Respondent.
Respondent Masudo Yeasmin moves this court by order to show cause for an order vacating a warrant of eviction served herein upon the grounds that execution of the warrant has been stayed by previous order of this court, Engoron J., pending respondent's compliance with the stipulation of settlement entered into among the parties on December 11, 2007. This matter was argued by the parties on April 1, 2008 at which time, at the request of Respondent, this court set a briefing schedule; Respondent was to submit a Reply by April 3, 2008 and Petitioner was to submit a Sur-Reply by April 10, 2008.
Petitioner is the Net Lessee at premises located at 274 Canal Street. Respondent is the tenant at 274 Canal Street Store No. B. In 2006 the owner of the premises Lanac Associates, LLC.,[hereinafter "Lanac"], brought a summary Holdover eviction proceeding under index # L T 104532/06, to evict the petitioner and its undertenants from the premises, alleging that they engaged in illegal activity consisting of the sale and possession of counterfeit goods. Petitioner brought summary Holdover eviction proceedings against its undertenants, including respondent herein. The proceeding against Respondent, which is the only one relevant for purposes of this motion, was brought under index # L T 105370/06. By order of this court the proceedings were consolidated for joint trial and in February 2007 the parties entered into a stipulation settling all matters[hereinafter "February stipulation"].
The stipulation of settlement, so ordered by the Hon. Arthur Engoron, in essence granted Lanac, and Petitioner a final judgment of possession and the issuance of a warrant of eviction but stayed the execution thereof provided Respondents/Undertenants, including respondent herein, refrained from engaging in illegal activity, to wit, the sale and/or storage of counterfeit merchandise. In the event any undertenant engaged in such activity then Lanac or petitioner would be "permitted to restore the proceeding on seven (7) days notice for a hearing" [See Stipulation ¶ 7 12]."If Lanac or Petitioner establish that illegal activity in the form of sale and/or storage of counterfeit merchandise took place, Lanac or petitioner will be permitted to execute the warrant forthwith against the store and/or portion of the store at the premises where the illegal activity has taken place."[See Stipiulation ¶ 8].
This stipulation was signed by Robert Wong, Esq., of Fong Wong, P.C., on behalf of petitioner and by Ren Rong Pan, Esq., on behalf of respondent.
Attorneys Fischman Fischman substituted Fong Wong, P.C., on September 4, 2007. In November 2007 Petitioner commenced a Summary Holdover proceeding against Respondent under index # L T 94543/07 alleging lease expiration. At this proceeding petitioner was represented by Fischman Fischman, and Respondent by Paul W. Siegert, Esq. This proceeding was settled by a stipulation of settlement dated December 11, 2007 [hereinafter "December Stipulation"] which contained the following terms:
"¶ 9-The Respondent represents that no illegal activity including, but not limited to, the sale and/or possession of illegal counterfeit merchandise is permitted and/or is taking place presently in the subject premises, and that the Respondent has and will continue to ensure that no illegal activity including, but not limited to, the sale and/or possession of illegal counterfeit merchandise, takes place in the subject premises. The Respondent represents, warrants and affirms that she will use her best efforts and will diligently act to take all actions necessary to prevent any such illegal activity from taking place in the future. IF IT IS ALLEGED THAT THE SALE AND/OR POSSESSION OF ILLEGAL COUNTERFEIT MERCHANDISE IS TAKING PLACE IN THE SUBJECT PREMISES PRIOR TO JUNE 30, 2008, THEN THE PETITIONER MAY MOVE TO RESTORE THIS PROCEEDING TO THE COURT CALENDAR ON FIVE (5) DAYS WRITTEN NOTICE BY FACSIMILE TRANSMISSION TO THE ATTORNEY FOR THE RESPONDENT, PAUL W. SIEGERT, WHOSE FAX NUMBER IS (212) 564-4414, TO REQUEST AN ORDER PERMITTING THE WARRANT TO EXECUTE FORTHWITH UPON PROOF BY A FAIR PREPONDERANCE OF THE CREDIBLE EVIDENCE THAT THE SALE AND OR POSSESSION OF ILLEGAL COUNTERFEIT MERCHANDISE IS TAKING PLACE IN THE SUBJECT PREMISES."
"¶ 25-THIS STIPULATION SUPERSEDES AND REVOKES ALL PREVIOUS NEGOTIATIONS, ARRANGEMENTS, LETTERS OF INTENT, REPRESENTATIONS, AND INFORMATION CONVEYED, WHETHER ORAL OR IN WRITING, BETWEEN THE PETITIONER AND THE RESPONDENT OR THEIR RESPECTIVE REPRESENTATIVES OR ANY OTHER PERSON PURPORTING TO REPRESENT THE PETITIONER OR THE RESPONDENT."
The December stipulation was signed by Lon Paul Fischman, Esq., for the Petitioner and by Paul W. Siegert, Esq., for the Respondent, as well as by the Petitioner and Respondent respectively.
On January 3, 2008 the attorneys for petitioner, Fischman Fischman, moved by notice of motion returnable January 18, 2008, under index # 105370/06, to restore that proceeding to the calendar of the court alleging a violation of the February stipulation. Annexed to its motion was an affidavit from an investigator, Andrew Oberfeldt, who alleges he visited Respondent's premises, purchased counterfeit merchandise and saw counterfeit merchandise on display. This motion was served on Ren Rong Pan, Esq., Respondent's previous attorney. On the return date no one appeared for the Respondent and the Hon. Arlene P. Bluth issued an order granting the motion on default, ordering the issuance and execution of a warrant forthwith upon presentation of proper papers to the warrant clerk.
Petitioner obtained a warrant of eviction and had it served on respondent on March 14, 2008. Respondent now moves to vacate that warrant .
The issue to be decided by this court is which of the stipulations is controlling and whether proper notice was given prior to restoration of this matter to the court's calendar.
A stipulation of settlement is a contract between the parties and as such is subject to the principles of contract law (McWade v. McWade, 253 AD2d 798, 677 NYS2d 596 [2nd. Dept, 1998]). Because it is a contract, the court should construe a stipulation in accordance with the intent of the parties and the purpose of the stipulation, but the court should not, under the guise of interpretation make a new contract for the parties (Iacobaci v. McAleavy, 222 AD2d 406, 634 NYS2d 515 [2nd. Dept, 1995]). There cannot be selective enforcement of a stipulation (Abrams v. Bronstein 33 NY2d 488, 354 NYS2d 926, 310 NE2d 528).
Petitioner and Respondent have entered into two stipulations, both containing essentially the same terms as regards the prohibition of the sale and/or possession of counterfeit merchandise at the premises. The differences in the stipulations are slight and pertain to the number of parties signing, amount of notice required and to whom notice is to be given. The February stipulation was signed by Lanac, Petitioner and all the Undertenants, including Respondent, and calls for seven days notice without any indication as to who that notice is to be given. The December stipulation is signed only by Petitioner and Respondent, calls for five days written notice by fax to Paul W. Siegert, Esq. One other difference is that the December stipulation allows Petitioner to execute on the warrant if Respondent fails to make payment of use and occupancy as required [see ¶ 7].
"A written contract executed between the parties not in performance of a distinct and separate provision of prior negotiations and agreements between them, but covering in its terms or legal effect the whole subject matter thereof, extinguishes and supersedes all such prior negotiations and agreements" (Renard v. Sampson, 12 NY 561, 1855 WL 6846). The December stipulation covered in its terms and legal effects the entire subject matter of the February stipulation. It not only covered payment of Use and Occupancy at the premises, It also covered the provisions in the February stipulation dealing with the sale and/or possession of counterfeit merchandise. Had it only covered the payment of Use and Occupancy then an argument could have been made that they were separate and distinct stipulations and that the December stipulation did not supersede the February stipulation
(See In re Ohringer, 283 AD2d 371, 725 NYS2d 334 [1st. Dept, 2001] second stipulation only addressed matters arising after the first, and the record does not indicate that the second stipulation actually factored in negotiations that resolved the interest issue left unresolved in the first).
Applying the principles of contract law we can safely conclude that the parties agreed in writing that the December stipulation, which covered the entire subject matter of the February stipulation, supersedes it.(See ¶ 25 December stipulation). The terms are very clear, unambiguous and reasonably susceptible to only this interpretation (Greenfield v. Philles Records, Inc., 98 NY2d 562, 750 NY S. 2d 565, 780 NE2d 166; Geohtermal Energy Corp., v. Caithness Corp., 34 AD3d 420, 825 NYS2d 485). When the meaning of a contract is plain and clear it is entitled to be enforced according to its terms (Beal Savings Bank v. Sommer 8 NY3d 318, 834 NYS2d 44, 865 NE2d 1210; 200 Genesee St. Corp., v. Utica 6 NY3d 761, 811 NYS2d 288, 844 NE2d 742; Vermont Teddy Bear Co., Inc., v. 538 Madison Realty Co., 1 NY3d 470, 755 NYS2d 765, 807 N.E. 2d 876; Greenfield v. Philles Records, Inc., 98 NY2d 562, 750 NYS2d 565, 780 NE2d 166, Supra). As between Petitioner and Respondent the December stipulation supersedes the February stipulation. Any notices should have been given in accordance with the December stipulation to Paul W. Siegert, Esq. Any notice not given in accordance with the terms of this stipulation contravenes it and as between the parties is of no legal effect.
The terms of the December stipulation cover the entire subject matter of the February stipulation and in accordance with its paragraph 25, and the principles of contract law, supersede it. The notice given by Petitioner was given under the terms of the February stipulation. This notice is of no legal effect since it should have been given in accordance with the December stipulation to Paul W. Siegert Esq. The warrant obtained by default after the defective notice should therefore be vacated.
Accordingly, for the foregoing stated reasons, it is the decision and order of this court that as between Petitioner and Respondent herein the December stipulation under index # L T 94543/07 supersedes the February stipulation under index # L T 105370/06. The notice given was improper and of no legal effect. The warrant of eviction obtained by default and previously served herein is vacated.
This constitutes the decision and order of this court.