Leon's Collision Shop, Inc. v. Rian Realty, Ltd.

211 A.D.2d 666, 622 N.Y.S.2d 455, 1995 N.Y. App. Div. LEXIS 306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1995
• Status: Published

Opinion

In an action to recover damages for breach of a stipulation of settlement, the plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County (Collins, J.), entered June 8, 1993, as, after a nonjury trial, dismisses the first cause of action to recover damages for breach of contract and is in favor of the defendant and against it in the principal sum of $4,800.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

We agree with the trial court’s interpretation of the relevant provisions of the parties’ stipulation of settlement and with the trial court’s conclusion that the plaintiff’s failure to timely vacate the premises relieved the defendant of its financial obligations under the stipulation. Thus, the trial court properly dismissed the first cause of action in which the plaintiff sought to recover damages pursuant to the terms of the stipulation of settlement.

Since the plaintiff did not suffer any prejudice as a result thereof, the trial court did not improvidently exercise its discretion by conforming the pleadings to the proof in order to permit the defendant to recover for the fair use and occupancy of the premises during the four-month period that the plaintiff failed to vacate the premises (see, CPLR 3025 [c]; Brook-Hattan Utils. v 893 Constr. Corp., 180 AD2d 660).

We have considered the plaintiff’s remaining contention and find it to be without merit. Miller, J. P., Joy, Krausman and Goldstein, JJ., concur.