SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
PRESENT:
HON. DANIEL MARTIN
Acting Supreme Court Justice
TRIAL/IAS, PART 39
NASSAU COUNTY.
CITIBANK, N.A.,
Plaintiff.
Index No.: 32298/95
Sequence No.: 005 & 006
- against FEREYDOUN POURATIAN,
FERESHTEH POURTIAN,
Defendants.
The following named papers have been read on this motion:
Notice of Motion and Affidavits Annexed
Notice of Cross-Motion and Affidavits Annexed
Answering Affidavits
Replying Affidavits
Papers Numbered
X
X
X
X
Upon reading the papers submitted and due deliberation having been had herein,
plaintiffs motion for an order 1) confirming the referee ’s report of sale dated March 13,200O; 2)
determining that the fair and reasonable market value of the premises as of the date when the
premises was bid on at auction was the sum of $500,000.00; and 3) granting plaintiff leave to
enter a deficiency judgment against defendants in the sum of $443,938.11 is hereby granted in
part and denied in part as set forth below. Defendants ’ motion to dismiss plaintiffs application
for a deficiency judgment is hereby granted.
The instant matter was commenced to foreclose on the premises known as 22 Florence
Street, Great Neck, New York 11023, County of Nassau, State of New York. On August 23,
1999 judgment of foreclosure and sale was entered herein for the amount of $774,379.29.
Plaintiff also annexes a copy of the referee ’s report of sale wherein referee Adrian Plipse
Hausch, Esq. reported that in addition to the judgment amount that plaintiff was entitled to, an
additional $169,558.82 representing interest, costs and disbursements, additional allowance
under the judgment, attorneys fees, real estate taxes, property inspections and appraisals, the
referee’s fee and advertising costs. Plaintiff therefore asserts that it was therefore entitled to a
total of $943,938.11. The property was sold to the highest bidder at $466,000.00. The referee
reported a deficiency of $477,938,11. Plaintiff herein seeks to confirm the report of sale, the
appraisal of the property at $500,000.00 and seeks leave to enter a deficiency judgment in the
amount of $443,938.11. Defendants oppose the motion and cross-move for a dismissal of the
application for entry of the deficiency judgment.
The court shall first decide the cross-motion. Defendants assert two reasons for why the
application for a deficiency judgment should be denied. First, defendants contend that plaintiff
was precluded from making the instant application by virtue of a stipulatisn of settlement
between the parties dated March 13,200O. The premises had originally been noticed for sale on
December 17, 1999. Defendant Fereshteh Pouratian filed for Chapter 13 bankruptcy on
December 16, 1999. Plaintiff moved to annul the automatic stay and validate the sale. The
motion was denied by the bankruptcy court. A notice of sale was sent to publication on March 7,
2000 and the matter was scheduled for closing on March 9,200O in apparent violation of the
stay. The defendants, plaintiff and referee all executed the above referenced stipulation of
settlement whereby defendants agreed to vacate the premises by August 15,200O. The
stipulation stated at paragraph 7:
“the parties hereby release and discharge each other, their respective successors, assigns,
agents and employees form any and all claims, suits, debts, sums of money, causes of
action, losses, costs and damages, including reasonable attorneys fees, or by reason of
any other matter, cause or thing from the beginning of time to the vacancy date in
connection with the premises. ”
Defendants urge that the court should dismiss the application for leave to enter a
deficiency judgment based on the above provision of the stipulation. Plaintiff contends that the
parties did not intend that the preclusion of the entry of a deficiency judgment was intended by
the parties when they executed the above referenced agreement. Plaintiff further argues that as it
received only $466,000 for the property at the sale that it would not receive any fair
consideration for entering into the stipulation of settlement.
“A stipulation is essentially a contract and may be enforced as such (see, New York Bank
for Sav. v. Howard Cortland St., 106 A.D.2d 496). ”Varveris v. Fisher, 229 A.D.2d 573,574
(2”d Dep ’t 1996). A stipulation will not be set aside on facts less than that which are required to
void a contract, including “fraud, collusion, mistake of fact, accident, or some other ground of
similar nature (citations omitted). ” Varveris v. Fisher, supra. at 574.
The interpretation of a contract is a matter of law and as such is within the province of
the court. W.A. Olson Enterprises, Inc. v. Agwav, Inc., 55 N.Y.2d 659 (1981); Automotive
Management Group, Ltd. v. SRB Manapement Co., Inc., 239 A.D.2d 450 (2”d Dep ’t 1997).
The contract is “. ..to be interpreted so as to give effect to the intention of the parties as
Management Group. Ltd., supra
expressed in the unequivocal language employed. Automotive
”
at 55.; Morlee Sales Corn. v. Manufacturers Trust Co., 9 N.Y.2d 16,210 N.Y.S.2d 516 (1960).
“[Cllear, complete writings should generally be enforced according to their terms.
” Automotive
Management Group, Ltd., supra at 55; Wallace v. 600 Partners Co., 86 N.Y.2d 543 (1995).
The above referenced portion of the stipulation of settlement unambiguously provides
that the parties release each other from any and all claims, sums of money, losses and costs and
damages. Plaintiff cannot here urge that it is entitled to such in the form of a deficiency
judgment where the parties have expressly agreed to release each other from such claims, sums
of money and losses. Accordingly, defendant ’s cross-motion for a dismissal of plaintiffs
application for a deficiency judgment is hereby granted and that branch of plaintiffs motion
which seeks a deficiency judgment is denied.
-.
As defendants do not oppose those branches of plaintiffs motion which seek a
determination of the fair and reasonable market value of the premises at $500,000.00 as per the
appraisal of Gerard O ’Connor, dated March10,200O and for a confirmation of the referee ’s
report dated March 13,2000, the court hereby grants plaintiff said relief.
So ordered.
Dated: Januarv 24.2001