Carr v. Carruth

85 A.D.2d 800, 445 N.Y.S.2d 613, 1981 N.Y. App. Div. LEXIS 16617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1981
• Status: Published

Opinions

Appeals (1) from an order of the Supreme Court at Special Term (Bryant, J.), entered October 9, 1980 in Chemung County, which ordered specific performance of the terms of a settlement stipulation, and (2) from an order of said court, entered January 14, 1981 in Chemung County, which denied defendant’s motion to vacate the prior order. While an action pursuant to RPAPL article 15 was pending, the attorneys for the parties herein entered into a settlement stipulation which, so far as relevant to this appeal, provided: (1) that defendant Carruth would deliver a quitclaim deed to the property in question to his attorney to be held in escrow; (2) that plaintiff Carr would diligently attempt to complete the sale of a 477-acre tract of land which included the premises which were the subject of the article 15 action, and upon closing plaintiff was to deliver a $14,000 check to her attorney made payable to defendant’s attorney; and (3) that upon completion of (1) and (2), the parties’ attorneys would simultaneously exchange deed and check and execute a stipulation of discontinuance. The settlement stipulation was dated July 2, 1979. In accordance with that stipulation, plaintiff proceeded with diligence to complete the sale. Two purchase offers were accepted, but because certain contingencies were not met by either the prospective buyers or the seller, those agreements were not consummated. On July 8, 1980 plaintiff obtained yet another offer. Like its predecessor, this one was also conditioned on plaintiff obtaining a release from Carruth of the latter’s interest in the property. Initially, the release was to be secured within 60 days; however, by further agreement plaintiff was given until April 1, 1981 to obtain it. Whether an additional extension has been granted does not appear in the record. In any event, a sale being imminent, plaintiff, well within that 60-day period, moved for an order directing Carruth to comply with the stipulation by executing and delivering the quitclaim deed to his attorney or an escrow agent. Carruth, responding to the motion, only filed the affidavit of his newly retained attorney, who alleged that defendant’s original lawyer was not authorized to enter into the stipulation. Special Term granted the motion and, subsequently, denied defendant’s motion to vacate the order resulting from the grant of relief to plaintiff. Defendant has appealed from both orders. Initially, we note that an attorney’s affidavit concerning matters about which he has no personal knowledge has little, if any, probative value (Israelson v Rubin, 20 AD2d 668, affd 14 NY2d 887), and thus the papers opposing the motion were deficient. More importantly, plaintiff obviously needs the relief she seeks and Carruth’s refusal to perform, undoubtedly prompted by the higher price of this sale, bespeaks an intention on his part not to comply with a stipulation which, in our view, is both definite and unambiguous. That plaintiff has been prejudiced by Carruth’s unwillingness to deliver the quitclaim deed is self-evident, for without it the sale cannot be carried out and she will be incapable of performing her part of the stipulation. Given these factors, we believe Special Term was correct. The holding of an evidentiary hearing, as suggested by the dissenters, will do nothing to clarify this dispute, for the record adequately demonstrates the facts. Orders affirmed, without costs. Main, Yesawich, Jr., and Herlihy, JJ., concur.