SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
January 28, 2011
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF TALAT BAJRO, APPELLANT,
RANDA FAWAKHERJI, DEFENDANT,
-AND- JAMIL FAWAKHERJI,
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 2, 2009.
State Farm Mut. Auto. Ins. Co. v Fawakherji
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 28, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ
The order granted a motion by defendant Jamil Fawakherji to vacate a judgment.
ORDERED that the order is affirmed, without costs.
In this subrogation action to recover the sums plaintiff paid to its subrogor, the parties entered into a stipulation in which they agreed to settle the action by allowing defendants to pay $1,800 in monthly installments of $50 each. The stipulation provided that "upon failure to cure default after ten days notice judgment may be entered - - for the amount demanded in the complaint with interest - - with a credit for payments previously made."
Defendants defaulted on their payments, with all but $400 of the negotiated settlement having been paid. In December 2007, plaintiff moved to enter judgment, and a judgment was thereafter entered awarding plaintiff the sum of $12,611.49 as against both defendants. Defendant Jamil Fawakherji subsequently moved to vacate the judgment insofar as entered against him on the ground that he had been out of the country and had never received any notice. Plaintiff did not oppose the motion, which was granted by order dated October 3, 2008. Plaintiff thereafter moved to vacate the October 3, 2008 order. By order dated February 19, 2009, a judgment in the sum of $5,286.04 was entered against defendant Jamil Fawakherji, who moved to vacate the judgment, arguing that he had not received any notice. By order dated June 2, 2009, the Civil Court granted the motion, finding that defendant Jamil Fawakherji had established both a reasonable excuse for his default in paying and a meritorious defense. This appeal by plaintiff ensued.
Parties to stipulations of settlement may agree to set the terms for the discontinuation of the legal proceeding in which they are parties, and such stipulations should be strictly enforced by the courts (see Hallock v State of New York, 64 NY2d 224, 230 ). Where the entry of judgment upon a default in payment is conditioned upon the service of a notice to cure, the plaintiff is required to provide sufficient proof that said notice was served (see Solid Gold Constr. v Robertson, 1 Misc 3d 136[A], 2003 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2003]).
Pursuant to the stipulation herein, prior to seeking the entry of a judgment, plaintiff was required to provide defendants with a notice to cure upon their default in payment. Since plaintiff never demonstrated, by one with firsthand knowledge, that it had served defendant Jamil Fawakherji with a notice to cure, the judgment should not have been entered against him (see Solid Gold Constr. v Robertson, 1 Misc 3d 136[A], 2003 NY Slip Op 51662[U]). Accordingly, the order is affirmed, albeit on other grounds.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: January 28, 2011
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