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Bernstein v. Beresford Apartments

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 26, 2009

MARTIN BERNSTEIN, ET AL., PLAINTIFFS-APPELLANTS,
v.
BERESFORD APARTMENTS, INC., DEFENDANT,
ROBERT WEINSTEIN, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered August 1, 2008, which denied plaintiffs tenants' motion to compel defendant tenant's performance of a stipulation of settlement to soundproof portions of his apartment, with leave to plaintiffs to resume prosecution of this action for breach of the warranty of habitability and injunctive relief as if there were no stipulation, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, Nardelli, Acosta, Richter, JJ.

106655/07

The motion was properly denied on the ground that defendant tenant's remaining performance obligations under the stipulation to soundproof portions of his apartment were expressly conditioned on an event that did not occur, namely, defendant coop's "rapid agreement" to other work he wanted to do in his apartment, and implicitly conditioned on plaintiffs' acceptance of defendant tenant's soundproofing plans, which was never given (see Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]). We have considered plaintiffs' other arguments, including that defendant tenant's soundproofing plans did not include portions of his apartment covered by the stipulation, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090526

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