| Orra Realty Corp. v Gillen |
| 2010 NY Slip Op 06784 [76 AD3d 1056] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Orra Realty Corp., Respondent, v Thomas J. Gillen et al.,Appellants. |
—[*1] V. Roy Cacciatore, P.C., Freeport, N.Y., for respondent.
In an action, inter alia, in effect, to recover the proceeds of an escrow account, the defendantsappeal from a judgment of the Supreme Court, Nassau County (Adams, J.), dated July 27, 2009,which, upon so much of an order of the same court dated June 4, 2009, as denied their motion forsummary judgment dismissing the complaint and granted that branch of the plaintiff's crossmotion which was for summary judgment on the first cause of action, in effect, to recover theproceeds of an escrow account, is in favor of the plaintiff and against them in the principal sumof $16,500.
Ordered that the judgment is affirmed, with costs.
In 1986 Leonard Shumsey purchased certain real property (hereinafter the premises) inFreeport and executed a mortgage on the premises in favor of Mario Blanco. In April 2002Blanco executed a partial assignment of the mortgage to the plaintiff. In December 2002 thedefendant The Gillen Living Trust, doing business as Jumbo Investments (hereinafter GLT),purchased a tax lien certificate referable to the premises at a tax auction conducted by the Villageof Freeport and, in June 2005, the Village issued a tax deed to GLT with respect to the premises.
The plaintiff commenced an action in the Supreme Court, Nassau County, under index No.12652/05 (hereinafter the 2005 action), inter alia, for a judgment declaring that the tax deed wasnull and void and that GLT did not have absolute and unencumbered title to the premises.Shumsey and the defendants in the present action, among others, were parties to the 2005 action.In November 2005, while that action was pending, Shumsey and the defendants entered into awritten stipulation (hereinafter the stipulation) which was drafted by the defendants' attorney andso-ordered by the Supreme Court. The stipulation provided, among other things, that Shumseywould deposit monthly "rent" payments in the amount of $1,500 into an escrow account and thatthe proceeds of the account were to be distributed "per court order only."
In April 2006 the Supreme Court entered a judgment, inter alia, declaring that the tax deedwas valid and that GLT had absolute and unencumbered title to the premises, and directing thatthe proceeds of the escrow account be distributed to GLT. This Court reversed the April 2006judgment insofar as appealed from (seeOrra Realty Corp. v Gillen, 46 AD3d 649 [2007]) and, in February 2008, the SupremeCourt entered an "Amended Judgment" which, among other things, vacated the April 2006judgment, declared that GLT did not have valid, absolute, and unencumbered title to thepremises, and cancelled the tax deed issued to GLT.[*2]
Shumsey commenced the present action seeking, amongother things, in effect, recovery of the proceeds of the escrow account, and he subsequentlyassigned his interest in this action to the plaintiff. Upon denying the defendants' motion forsummary judgment dismissing the complaint and granting that branch of the plaintiff's crossmotion which was for summary judgment on the first cause of action, in effect, to recover theproceeds of the escrow account, the Supreme Court entered judgment in favor of the plaintiff andagainst the defendants in the principal sum of $16,500. We affirm.
"A so-ordered stipulation is a contract between the parties thereto and as such, is binding onthem and 'will be construed in accordance with contract principles and the parties' intent' " (Aivaliotis v Continental Broker-DealerCorp., 30 AD3d 446, 447 [2006], quoting Serna v Pergament Distribs., 182AD2d 985, 986 [1992]; see Camelot ofStaten Is., Inc. v Metropolitan Mgt., LLC, 56 AD3d 505 [2008]). Here, an objectivereading of the stipulation (see Iacobacci v McAleavey, 222 AD2d 406, 407 [1995])reveals that the defendants were not entitled to the proceeds of the escrow account if, in the 2005action, the plaintiff succeeded in obtaining a declaration that GLT did not have absolute andunencumbered title to the premises and in having the tax deed cancelled (see generallyW.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Thus, the stipulation submittedby the defendants in support of their motion was insufficient to make a prima facie showing ofentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). In contrast, the plaintiff made a prima facie showing of entitlement to judgment as amatter of law on the first cause of action, in effect, to recover the proceeds of the escrow accountby demonstrating that the stipulation entitled Shumsey to recover his "rent" payments under theaforementioned circumstances, and the defendants failed to raise a triable issue of fact inopposition (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The defendants' remaining contentions are without merit. Covello, J.P., Santucci, Balkin andAustin, JJ., concur.