| Church Extension Plan v Harvest Assembly of God |
| 2010 NY Slip Op 09207 [79 AD3d 787] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Church Extension Plan, Appellant, v Harvest Assembly of God,Respondent. |
—[*1] Barr Post & Associates, PLLC, Spring Valley, N.Y. (Harvey S. Barr of counsel), forrespondent.
In an action to foreclose on consolidated mortgages, the plaintiff appeals from an order of theSupreme Court, Rockland County (Garvey, J.), dated December 9, 2009, which denied the plaintiff'sunopposed motion for leave to enter a judgment of foreclosure and sale and for the issuance of an orderof reference pursuant to a stipulation of settlement.
Ordered that the order is reversed, on the law, with costs payable by the defendant, the plaintiff'smotion for leave to enter a judgment of foreclosure and sale and for the issuance of an order ofreference is granted.
In 2001 and 2003, the defendant, a duly formed and existing religious corporation, obtainedjudicial approvals pursuant to the Religious Corporation Law to mortgage its church property located at4 Lincoln Street in the Village of Haverstraw, in order to demolish the existing structure and construct anew church. Three separate mortgages totaling more than $718,911.87, were executed by thedefendant, and thereafter consolidated under the auspices of the plaintiff, a Salem, Oregon,corporation.
After the defendant defaulted on its mortgage payments, the plaintiff commenced the instant actionseeking to foreclose the consolidated mortgages on the church property. Negotiations ensued and theparties eventually entered into a full "Settlement Stipulation," which they thereafter modified with theexecution of a new agreement entitled an amendatory settlement stipulation dated July 11, 2008.Among other things, this amendatory settlement stipulation restructured the debt by extending thepayment period, providing a detailed payment schedule, and calling for the summary foreclosure of theconsolidated mortgages in case of another payment default.
Following the defendant's second default and the service upon it of a notice to cure, the plaintiffmoved for leave to enter a judgment of foreclosure and sale and for the issuance of an order ofreference. The Supreme Court denied the plaintiff's motion, which was not opposed, on the groundsthat the existence of the prior settlements and the passage of time required the commencement of aseparate plenary action for the relief requested. We reverse.
"A settlement agreement entered into by parties to a lawsuit does not terminate the [*2]action unless there has been an express stipulation of discontinuance oractual entry of judgment in accordance with the terms of the settlement. Absent such termination, thecourt retains its supervisory power over the action and may lend aid to a party who had moved forenforcement of the settlement" (Teitelbaum Holdings v Gold, 48 NY2d 51, 53 [1979];Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 445-446 [1928]; Zeer v Azulay, 50 AD3d 781, 785[2008]; Pegalis v Gibson, 237 AD2d 420, 421 [1997]). Only when a party seeks to set aside,invalidate, or modify a stipulation of settlement would a plenary action be required (see Moshe v Town of Ramapo, 54 AD3d1030 [2008]; Zeer v Azulay, 50 AD3d at 785; Round v Monk, 100 AD2d 542[1984]).
Applying these principles to the matter at bar, the Supreme Court erred in denying the plaintiff'smotion pursuant to the terms of the Amendatory Settlement Stipulation. It is undisputed that the partieshave not yet entered a judgment pursuant to the terms of the Settlement Stipulation or the AmendatorySettlement Stipulation, and have not executed a stipulation of discontinuance. As such, enforcement ofthe Amendatory Settlement Stipulation by motion in this action was appropriate and warranted (seeTeitelbaum Holdings v Gold, 48 NY2d at 56; Zeer v Azulay, 50 AD3d at 785; Cadlerock Joint Venture, L.P. v Rubenstein,26 AD3d 219, 220 [2006]). Prudenti, P.J., Dillon, Balkin and Chambers, JJ., concur.