| Hsu v Carlyle Towers Coop. "B," Inc. |
| 2013 NY Slip Op 00307 [102 AD3d 835] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Lily Hsu et al., Respondents, v Carlyle TowersCooperative "B," Inc., et al., Appellants, et al., Defendants. |
—[*1] Lily Hsu and Peter Hsu, Flushing, N.Y., respondents pro se (one brieffiled).
In an action, inter alia, to set aside a foreclosure sale of the plaintiffs' shares in aresidential cooperative corporation, the defendants Carlyle Towers Cooperative "B," Inc.,All Area Realty Services, Inc., and All Area Property Management Co. appeal from somuch of an order of the Supreme Court, Queens County (James J. Golia, J.), enteredMarch 30, 2011, as, upon denying, as academic, that branch of the motion of the plaintiffLily Hsu, made pro se, which was to discharge the plaintiffs' attorney and permit theplaintiffs to proceed pro se, granted that branch of the motion which was to enforce theparties' stipulation of settlement and, in effect, denied their cross motion for an award ofan attorney's fee and, in effect, to preclude the plaintiff Lily Hsu from moving pro se forany relief other than to discharge the plaintiffs' attorney and permit the plaintiffs toproceed pro se.
Ordered that on the Court's own motion, so much of the order as denied, asacademic, that branch of the motion of the plaintiff Lily Hsu which was to discharge theplaintiffs' attorney and permit the plaintiffs to proceed pro se is vacated, and that branchof the motion of the plaintiff Lily Hsu is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents.
In this action, inter alia, to set aside a foreclosure sale of the plaintiffs' shares in aresidential cooperative corporation, the parties entered into a stipulation of settlement.The plaintiffs were represented by an attorney when they entered into the stipulation ofsettlement. Subsequently, the plaintiff Lily Hsu moved, pro se, to enforce the stipulationof settlement and to discharge the plaintiffs' attorney and permit the plaintiffs to proceedpro se. The defendants Carlyle Towers Cooperative "B," Inc. (hereinafter theCooperative), All Area Realty Services, Inc., and All Area Property Management Co.(hereinafter collectively the appellants) opposed that branch of the motion which was toenforce the stipulation of settlement and cross-moved, among other things, for an awardof an attorney's fee. The appellants argued that at the time Hsu made her motion, she wasstill [*2]represented by the plaintiffs' attorney, and thus,pursuant to CPLR 321 (a), Hsu was not permitted to make a motion for any substantiverelief, other than for the discharge of the plaintiffs' attorney.
In the order appealed from, the Supreme Court granted that branch of Hsu's motionwhich was to enforce the stipulation of settlement. The Supreme Court denied, asacademic, that branch of Hsu's motion which was to discharge the plaintiffs' attorney andto permit the plaintiffs to proceed pro se. In this regard, the Supreme Court reasoned that,because the parties entered into the stipulation of settlement, the action was resolved andconcluded, and, therefore, the plaintiffs were no longer represented by the attorney whorepresented them in the action. Moreover, the plaintiffs had not obtained counsel torepresent them in this post-disposition motion. Thus, the Supreme Court did not deem theplaintiffs to be represented by counsel, denied this branch of Hsu's motion as academic,and did not consider whether to consent to allowing the plaintiffs to proceed pro se(see CPLR 321 [a]). Finally, the Supreme Court, in effect, denied the appellants'cross motion.
Contrary to the Supreme Court's determination, that branch of Hsu's motion whichwas to discharge the plaintiffs' attorney such that the plaintiffs may proceed pro se wasnot rendered academic by the stipulation of settlement in this action. Although theportion of the order appealed from which denied, as academic, that branch of Hsu'smotion which was to discharge the plaintiffs' attorney and permit the plaintiffs to proceedpro se is not directly before this Court on the limited appeal, under the circumstances ofthis case, in the interest of judicial economy, and since the resolution of this issue isinextricably intertwined with the issues raised on appeal (see Matter of Burk, 298NY 450, 455 [1949]; City of Mount Vernon v Mount Vernon Hous. Auth., 235AD2d 516, 517 [1997]), we vacate that portion of the order and determine the merits ofthat branch of the motion. The Supreme Court should have granted that branch of themotion, and, in fact, could not have denied that branch of the motion, as it involved theperformance of a ministerial act (see CPLR 321 [b] [2]). "[A] client may, as amatter of public policy, discharge an attorney at any time, with or without cause. . . in the manner prescribed by statute" (Moustakas v Bouloukos,112 AD2d 981, 983 [1985] [citations omitted]; see Maceno v Dutrevil, 77 AD3d 888, 888 [2010]). Indeed,the appellants did not oppose that branch of the motion.
Contrary to the appellants' contention, "the plaintiff[s] w[ere] not required tocommence a plenary action to enforce the stipulation of settlement because the action hadnot been terminated by a stipulation of discontinuance or the entry of a judgment"(Gressin v National Life Ins. Co., 278 AD2d 451, 452-453 [2000]; seeTeitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Pegalis v Gibson, 237AD2d 420 [1997]). "An action is not automatically terminated by agreement unless therehas been a showing 'that the parties have executed an express, unconditionalstipulation of discontinuance' " (Pegalis v Gibson, 237 AD2d 420, 421[1997], quoting Teitelbaum Holdings v Gold, 48 NY2d 51, 56 [1979]).Furthermore, the Supreme Court properly granted that branch of Hsu's motion which wasto enforce the stipulation of settlement.
The appellants' contention that the Cooperative's actions in determining that theplaintiffs tampered with an electric meter, and in charging the plaintiffs for thereplacement of the meter, are immune from judicial review based on the businessjudgment rule or a rule analogous thereto (see Matter of Levandusky v One FifthAve. Apt. Corp., 75 NY2d 530, 537-538 [1990]; Oakwood On The Sound, Inc. v David, 63 AD3d 893, 894[2009]) is improperly raised for the first time on appeal, and therefore is not properlybefore this Court (see Shilkoff vLonghitano, 94 AD3d 974 [2d Dept 2012]).
The appellants' assertion in their reply brief that this Court should strike theplaintiffs' brief for its failure to comply with the form and content requirements of 22NYCRR 670.10.3 is not properly before this Court, as the appellants failed to make amotion on notice for this relief (see Barrett v New York City Tr. Auth., 80 AD3d 550, 551[2011]).
The appellants' remaining contention is without merit. Dillon, J.P., Dickerson, Halland Sgroi, JJ., concur.