Mundinger v. Clark

Appellate Division of the Supreme Court of New York

Mundinger v. Clark

240 A.D.2d 714, 660 N.Y.S.2d 27, 1997 N.Y. App. Div. LEXIS 7125

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

DecidedJune 30, 1997

StatusPublished

This text of 240 A.D.2d 714 (Mundinger v. Clark) 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

Mundinger v. Clark, 240 A.D.2d 714, 660 N.Y.S.2d 27, 1997 N.Y. App. Div. LEXIS 7125 (N.Y. Ct. App. 1997).

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Opinion

In action to recover damages, inter alia, for a breach of a” shareholders agreement, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), dated July 15, 1996, which, inter alia, denied their application to, among other things, enjoin the defendants from proceeding with a warrant of eviction.

Ordered that the order is affirmed, with costs. •

We agree with the plaintiffs that the letter of the defendants Edward L. Clark and Alba B. Clark dated July 21, 1995, setting forth new terms to the May 1, 1995, stipulation of settlement constituted a repudiation of the stipulation (see, Sunshine Steak, Salad & Seafood v W. I. M. Realty, 135 AD2d 891). However, the plaintiffs did not seek rescission but instead elected to hold the Clarks to the original stipulation of settlement and demanded performance in accordance with it. Thus, the plaintiffs kept the stipulation agreement alive for the benefit of both parties, so that either party could take advantage of supervening events (see, Rubber Trading Co. v Manhattan Rubber Mfg. Co., 221 NY 120, 126; Matter of Badstein, 225 AD2d 691; Hadfield v Colter, 188 App Div 563, 577; cf., Matthews v Bearce, 65 AD2d 853). The plaintiffs, by failing to vacate the premises on the agreed-upon date of July 31, 1995, breached the stipulation of settlement, and therefore may not now seek to rescind the stipulation of settlement based on the Clarks’ anticipatory breach. Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.

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In action to recover damages, inter alia, for a breach of a” shareholders agreement, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), dated July 15, 1996, which, inter alia, denied their application to, among other things, enjoin the defendants from proceeding with a warrant of eviction.

Ordered that the order is affirmed, with costs. •

We agree with the plaintiffs that the letter of the defendants Edward L. Clark and Alba B. Clark dated July 21, 1995, setting forth new terms to the May 1, 1995, stipulation of settlement constituted a repudiation of the stipulation (see, Sunshine Steak, Salad & Seafood v W. I. M. Realty, 135 AD2d 891). However, the plaintiffs did not seek rescission but instead elected to hold the Clarks to the original stipulation of settlement and demanded performance in accordance with it. Thus, the plaintiffs kept the stipulation agreement alive for the benefit of both parties, so that either party could take advantage of supervening events (see, Rubber Trading Co. v Manhattan Rubber Mfg. Co., 221 NY 120, 126; Matter of Badstein, 225 AD2d 691; Hadfield v Colter, 188 App Div 563, 577; cf., Matthews v Bearce, 65 AD2d 853). The plaintiffs, by failing to vacate the premises on the agreed-upon date of July 31, 1995, breached the stipulation of settlement, and therefore may not now seek to rescind the stipulation of settlement based on the Clarks’ anticipatory breach. Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.

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Bluebook (online)

240 A.D.2d 714, 660 N.Y.S.2d 27, 1997 N.Y. App. Div. LEXIS 7125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mundinger-v-clark-nyappdiv-1997.

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