34 Funding Associates, Inc. v. Pollak

Appellate Division of the Supreme Court of New York

34 Funding Associates, Inc. v. Pollak

26 A.D.3d 182, 811 N.Y.S.2d 352

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2006

StatusPublished

Cited by5 cases

This text of 26 A.D.3d 182 (34 Funding Associates, Inc. v. Pollak) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

34 Funding Associates, Inc. v. Pollak, 26 A.D.3d 182, 811 N.Y.S.2d 352 (N.Y. Ct. App. 2006).

Pincite

Opinion

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 9, 2004, which denied defendant Poliak’s motion to vacate a July 23, 2001 judgment of foreclosure and sale, unanimously affirmed, with costs.

Although plaintiffs predecessors in this mortgage foreclosure action apparently failed to serve the summons and complaint on Pollak within 30 days after filing the notice of pendency, as required by CPLR 6512, Pollak did sign a stipulation of settlement with the substitute plaintiff on January 12, 2001, consenting to jurisdiction in Supreme Court, as well as to the referee’s report of sale showing $1,434,206.60 due plaintiff, and to the entry of a judgment of foreclosure and sale accordingly. Given that stipulations of settlement are favored by the courts and are not lightly cast aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Board of Mgrs. of Atrium Condominium v West [183]*18379th St. Corp., 19 AD3d 241 [2005]), we find that Pollak has not set forth sufficient cause to invalidate the stipulation (see Clark v Bristol-Myers Squibb & Co., 306 AD2d 82 [2003]).

With respect to Pollak’s claims that the receiver, David Stringer, who was removed over three years prior to the stipulation of settlement, and the mortgagee-in-possession, WHC, Inc., which assigned the subject mortgage over a year and a half prior to the stipulation, retained monies and did not comply with their fiduciary duties, these claims arose out of the same transaction and could have been litigated during the three years prior to the stipulation. Accordingly, res judicata bars Poliak from litigating these claims that could have been part of the stipulation of settlement (see Matter of Hofmann, 287 AD2d 119 [2001]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1 [2000]).

We have examined Pollak’s remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Friedman, Catterson and Malone, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 9, 2004, which denied defendant Poliak’s motion to vacate a July 23, 2001 judgment of foreclosure and sale, unanimously affirmed, with costs.

Although plaintiffs predecessors in this mortgage foreclosure action apparently failed to serve the summons and complaint on Pollak within 30 days after filing the notice of pendency, as required by CPLR 6512, Pollak did sign a stipulation of settlement with the substitute plaintiff on January 12, 2001, consenting to jurisdiction in Supreme Court, as well as to the referee’s report of sale showing $1,434,206.60 due plaintiff, and to the entry of a judgment of foreclosure and sale accordingly. Given that stipulations of settlement are favored by the courts and are not lightly cast aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Board of Mgrs. of Atrium Condominium v West [183]*18379th St. Corp., 19 AD3d 241 [2005]), we find that Pollak has not set forth sufficient cause to invalidate the stipulation (see Clark v Bristol-Myers Squibb & Co., 306 AD2d 82 [2003]).

With respect to Pollak’s claims that the receiver, David Stringer, who was removed over three years prior to the stipulation of settlement, and the mortgagee-in-possession, WHC, Inc., which assigned the subject mortgage over a year and a half prior to the stipulation, retained monies and did not comply with their fiduciary duties, these claims arose out of the same transaction and could have been litigated during the three years prior to the stipulation. Accordingly, res judicata bars Poliak from litigating these claims that could have been part of the stipulation of settlement (see Matter of Hofmann, 287 AD2d 119 [2001]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1 [2000]).

We have examined Pollak’s remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Friedman, Catterson and Malone, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

26 A.D.3d 182, 811 N.Y.S.2d 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/34-funding-associates-inc-v-pollak-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack