SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
February 16, 2011
WINTER BROS. RECYCLING CORP., APPELLANT,
BARRY IMPORTS EAST CORP.,
Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered April 22, 2009, and from an order of the same court entered June 30, 2009. The judgment, after a non-jury trial, dismissed the action. The order denied plaintiff's motion to vacate the judgment.
Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2011
PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ
ORDERED that the order is reversed, without costs, plaintiff's motion to vacate the judgment is granted and the action is dismissed; and it is further,
ORDERED that the appeal from the judgment is dismissed as moot.
Plaintiff commenced this commercial claims action seeking to recover the sum of $5,000 for defendant's alleged breach of a waste carting contract dated September 20, 2005.
On April 13, 2009, after the non-jury trial had concluded but before a verdict had been rendered, plaintiff advised the District Court of a settlement and requested that the court not render its judgment for two weeks in order to allow the parties to reduce the settlement to a writing. On April 22, 2009, the parties voluntarily executed a stipulation discontinuing the action and forwarded same by facsimile to the District Court. However, on the same day, the court rendered a decision in favor of defendant and judgment was entered thereon. Plaintiff subsequently moved to vacate the judgment on the ground that the action had been settled. The District Court denied the motion. Plaintiff appeals, contending that the court should never have rendered a verdict.
It is undisputed that the parties in this action had clearly intended to discontinue this action, based upon their settlement agreement, and had notified the District Court of their desire that no judgment be rendered. Under the particular circumstances presented, we are of the view that the order denying plaintiff's motion to vacate the judgment should be reversed, the motion granted, and the action dismissed. In view of the foregoing, the appeal from the judgment is dismissed as moot.
Molia, J.P., Tanenbaum and LaCava, JJ., concur. Decision Date: February 16, 2011
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