Simons v. Miller

Appellate Division of the Supreme Court of New York

Simons v. Miller

272 A.D.2d 239, 708 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 5871

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

DecidedMay 25, 2000

StatusPublished

This text of 272 A.D.2d 239 (Simons v. Miller) 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

Simons v. Miller, 272 A.D.2d 239, 708 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 5871 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Franklin Weissberg, J.), entered May 13, 1999, which denied plaintiffs motion for summary judgment, granted the cross motion of defendants Justin Tseng and Patricia Tseng for summary judgment dismissing the complaint as against them, and awarded summary judgment pursuant to CPLR 3212 (b) dismissing the complaint as against the remaining defendant; Mary Miller, unanimously affirmed, with costs.

The so-ordered stipulation between plaintiff and defendant Miller was clear and unambiguous and, as such, was properly interpreted by the motion court (see, Teitelbaum Holdings Gold, 48 NY2d 51, 56). The stipulation provided that “[defendant Miller] had the right to manage the apartment as [she] wishefd] including the right to sell [it] until & unless plaintiff pays the $15,000.” As the motion court found, defendant Miller’s sale of the apartment on July 2, 1998, 19 days before the final date on which defendant could have made payment under the stipulation, was in conformity with this proviso. The sale did not abrogate plaintiffs financial interest in the sale proceeds, which plaintiff could have preserved had he tendered timely payment thereafter. Plaintiff, however, ultimately failed to tender payment until August 3, 1998, after the time permitted in the stipulation. Concur — Sullivan P. J., Rosenberger, Williams, Wallach and Friedman, JJ.

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—Order, Supreme Court, New York County (Franklin Weissberg, J.), entered May 13, 1999, which denied plaintiffs motion for summary judgment, granted the cross motion of defendants Justin Tseng and Patricia Tseng for summary judgment dismissing the complaint as against them, and awarded summary judgment pursuant to CPLR 3212 (b) dismissing the complaint as against the remaining defendant; Mary Miller, unanimously affirmed, with costs.

The so-ordered stipulation between plaintiff and defendant Miller was clear and unambiguous and, as such, was properly interpreted by the motion court (see, Teitelbaum Holdings Gold, 48 NY2d 51, 56). The stipulation provided that “[defendant Miller] had the right to manage the apartment as [she] wishefd] including the right to sell [it] until & unless plaintiff pays the $15,000.” As the motion court found, defendant Miller’s sale of the apartment on July 2, 1998, 19 days before the final date on which defendant could have made payment under the stipulation, was in conformity with this proviso. The sale did not abrogate plaintiffs financial interest in the sale proceeds, which plaintiff could have preserved had he tendered timely payment thereafter. Plaintiff, however, ultimately failed to tender payment until August 3, 1998, after the time permitted in the stipulation. Concur — Sullivan P. J., Rosenberger, Williams, Wallach and Friedman, JJ.

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Bluebook (online)

272 A.D.2d 239, 708 N.Y.S.2d 383, 2000 N.Y. App. Div. LEXIS 5871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simons-v-miller-nyappdiv-2000.

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