| Alshawhati v Zandani |
| 2011 NY Slip Op 01777 [82 AD3d 805] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Abdo M. Alshawhati, Also Known as Abdo Moslem Al Shohatee,Appellant, v Abdulaqadar A. Zandani, Also Known as Abdulkader Adbo Zandani andAnother, et al., Respondents, et al., Defendant. |
—[*1] Richard A. Izzo, Brooklyn, N.Y., for respondent Abdulaqadar A. Zandani, also known asAbdulkader Adbo Zandani, also known as Abdo Alzandani.
In an action, inter alia, for the partition and sale of real property, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Demarest,J.), dated June 1, 2010, as granted those branches of the motion of the defendants AbdulaqadarA. Zandani, also known as Abdulkader Adbo Zandani, also known as Abdo Alzandani, andHassan Ali Hugran, also known as Hassan Ali Hujran, which were to enforce the terms of astipulation of settlement entered into on February 2, 2010, between the plaintiff and those twodefendants and to appoint a referee to sell the subject real property at public auction to satisfy theterms of the stipulation of settlement.
Ordered that the order is modified, on the law, by deleting the third through fifteenth decretalparagraphs thereof directing that the subject real property be sold at public auction andappointing a referee; as so modified, the order is affirmed insofar as appealed from, without costsor disbursements, and the matter is remitted to the Supreme Court, Kings County, for furtherproceedings consistent herewith.
On August 10, 1988, the plaintiff and the defendant Abdulaqadar A. Zandani, also known asAbdulkader Adbo Zandani, also known as Abdo Alzandani (hereinafter Zandani), purchased realproperty located at 890 Rockaway Avenue in Brooklyn (hereinafter the subject property), astenants in common. The subject property contained a building consisting of 10 residentialapartments and two commercial storefronts. The plaintiff, Zandani, and the defendant Hassan AliHugran, also known as Hassan Ali Hujran (hereinafter Hugran) (Zandani and Hugran hereinaftertogether the respondents), operated a grocery store out of one of the storefronts.
In August 2007, the plaintiff commenced this action against Zandani, Hugran, and 890Rockaway Food Corp. alleging, inter alia, that the respondents refused him access to the grocerystore in violation of their agreement concerning the operation of the store, and created thedefendant 890 Rockaway Food Corp. without his knowledge or consent.Among the 18 causes of action pleaded, the plaintiff sought the partition and sale of the subjectproperty.
After the plaintiff filed his note of issue, the plaintiff and the respondents entered into [*2]a stipulation of settlement on February 2, 2010, while in court.According to the terms of the stipulation, the parties agreed that, on February 19, 2010, theplaintiff would purchase Zandani's 50% interest in the subject property for the sum of$1,000,000, of which the sum of $600,000 was to be in cash and the remaining $400,000 was tobe held in the form of a purchase money noninterest bearing mortgage payable within 16 monthsfrom the date of closing. The respondents would then enter into a separate settlement agreementresolving Hugran's interest in the subject property.
The terms of the stipulation were placed on the record. While on the record, through theassistance of an Arabic interpreter, the Supreme Court confirmed that the plaintiff and therespondents accepted the terms of the stipulation and understood that they would now be boundby its terms by questioning each one of them under oath.
The plaintiff failed to appear for the closing on February 19, 2010. The respondents moved,inter alia, to enforce the stipulation and to enter judgment in their favor, or to appoint a referee toimmediately sell the subject property at auction. The plaintiff opposed the motion on the groundthat Zandani's share of the subject property was not worth $1,000,000 as he had been led tobelieve by Zandani, who allegedly assured the plaintiff for years that the subject property wasworth several million dollars. The Supreme Court, inter alia, granted those branches of therespondents' motion which were to enforce the stipulation and to appoint a referee to sell thesubject property at auction.
"A stipulation of settlement is a contract, enforceable according to its terms" (McKenziev Vintage Hallmark, 302 AD2d 503, 504 [2003]; see Vider v Vider, 46 AD3d 673, 674 [2007]; Fukilman v 31st Ave. Realty Corp., 39AD3d 812, 813 [2007]). When a court enforces a stipulation of settlement, it must effectuatethe parties' intent (see Vider v Vider, 46 AD3d at 674; Fukilman v 31st Ave. RealtyCorp., 39 AD3d at 813). As with any contract, where the terms of a stipulation of settlementare unambiguous, the Supreme Court must give effect to the parties' intent based upon the plainmeaning of the words used by the parties (see Teitelbaum Holdings v Gold, 48 NY2d 51,56 [1979]; Vider v Vider, 46 AD3d at 674; Fukilman v 31st Ave. Realty Corp.,39 AD3d at 813; see also Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; Johnston v MGM Emerald Enters.,Inc., 69 AD3d 674, 677 [2010]; Henrich v Phazar Antenna Corp., 33 AD3d 864 [2006]).
Here, the plaintiff clearly failed to comply with the terms of the valid stipulation, whichrequired him to purchase Zandani's 50% interest in the subject property for the sum of$1,000,000 on February 19, 2010. Therefore, the Supreme Court properly granted that branch ofthe respondents' motion which was to enforce the stipulation.
The Supreme Court erred in granting that branch of the respondents' motion which was toappoint a referee to sell the subject property at public auction. The terms of the stipulation wereunambiguous. Accordingly, the Supreme Court was required to give effect to those terms and notinclude additional terms. The stipulation, as set forth by the parties on the record, did not containany provision requiring that the subject property be sold at auction in the event of a default. Thus,the Supreme Court should not have granted that relief (see Hallock v State of New York,64 NY2d 224 [1984]; Teitelbaum Holdings v Gold, 48 NY2d at 54; Markovits v Mitrany, 12 AD3d574, 574 [2004]; M & B Equities v Parkway Gardens Owners, 286 AD2d 755, 756[2001]; see also Ramnarain vRamnarain, 7 AD3d 600, 601 [2004]).
Accordingly, we remit the matter to the Supreme Court, Kings County, to enforce the termsof the stipulation and to vacate the sale of the subject property at public auction by the referee.Angiolillo, J.P., Florio, Belen and Austin, JJ., concur.