COURT COULD DECIDE MOTION, SINCE CASE WAS STILL “ALIVE”
Since he owned a piece of property as a tenant-in-common with the defendant, the plaintiff filed suit in the Kings County Supreme Court seeking the appointment of a referee to determine the parties’ rights and to sell the property. But the plaintiff and defendant later agreed that the parcel would be listed with a real-estate broker, at varying prices, depending on how long it was listed (and went unsold). Months later, they agreed to remove the property from the market and have it re-listed later. That document also provided how the proceeds would be disbursed and indicated that the action was settled “except for the enforcement” of the stipulation’s terms.
When they were unable to reach an agreement regarding the re-listing, the plaintiff again sought the court’s intervention (within the context of the same case) and the Supreme Court directed that a broker list the property for sale, and if a buyer wasn’t found within a delineated period, the property would be sold by a referee.
On appeal, the Appellate Division, Second Department, didn’t agree with the defendant’s contention that the Supreme Court lacked the power to enforce the parties’ agreement (due to the settlement), because there had been no clear termination of the litigation. In the absence of an “express, unconditional stipulation of discontinuance of the action,” the AD2 concluded that the Supreme Court had the “jurisdiction” to enforce the underlying settlement’s terms.
Bet the defendant wasn’t sold on that ….
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DECISION