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C.L.B. Check Cashing, Inc v. Ny Hobbies

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 26, 2012

C.L.B. CHECK CASHING, INC.,
APPELLANT,
v.
NY HOBBIES, INC. AND PATRICIA RIZZO MCCABE ALSO KNOWN AS PAT MCCABE,
RESPONDENTS,
-AND-
ROBERT MCCABE AND GARTH A. LEWIS,
DEFENDANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 6, 2010.

C.L.B. Check Cashing, Inc. v N.Y. Hobbies, Inc.

Decided on January 26, 2012

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 This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order, insofar as appealed from, granted a motion by defendant Patricia Rizzo McCabe to vacate so much of a judgment as was entered against her, lifted "all restraints, garnishments and executions," reinstated a stipulation of settlement dated August 27, 2009, and provided that defendant Patricia Rizzo McCabe was to receive credit for all payments she had made to date pursuant to the stipulation and was to resume making payments pursuant to the stipulation, commencing August 1, 2010.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff, a check-cashing company, brought this action to recover damages after three checks it had cashed were dishonored for insufficient funds. Following the joinder of issue, defendants NY Hobbies, Inc. (Hobbies) and Patricia Rizzo McCabe (Pat McCabe), proceeding pro se, entered into a stipulation with plaintiff, pursuant to which those defendants agreed to pay plaintiff $12,237.86 in $100 monthly installments, beginning on October 1, 2009. The so-ordered stipulation allowed defendants a 10-day grace period for payment, and required that payment be made by postal money order or bank teller check, payable to the attorney trust account of plaintiff's lawyer. It provided, among other things, that in the event defendants failed to make the payments as stipulated, plaintiff could enter judgment against defendants Hobbies and Pat McCabe "for the full amount as pleaded of $12,237.86 together with 9% interest from December 11, 2007 and the costs and disbursements of this action." On January 15, 2010, upon the application of plaintiff's attorney, judgment was entered against defendants in the sum of $14,534.31.

In June 2010, Pat McCabe, having retained counsel, moved to vacate the judgment, on the alternate grounds that she had complied with the terms of the stipulation, and that even if she had been late in one payment, by accepting and negotiating that payment and subsequent payments she had made under the stipulation, plaintiff's counsel had waived any default or breach. Plaintiff opposed Pat McCabe's application. The Civil Court granted Pat McCabe's motion, vacated the judgment, lifted all restraints, garnishments and executions, and reinstated the stipulation of settlement, with the instruction that payments thereunder were to resume on August 1, 2010.

We now affirm.

While a so-ordered stipulation is considered the equivalent of a binding contract (see e.g. Palmieri v Town of Babylon, 87 AD3d 625 [2011]; Alshawhati v Zandani, 82 AD3d 805 [2011]), in general, a stipulation's enforcement remains "subject to the supervision of the courts" (Malvin v Schwartz, 65 AD2d 769, 769 [1978], affd 48 NY2d 693 [1979]), and "courts may relieve a party from the consequences of enforcement where such would be unjust or inequitable' " (J & H Mgt. Corp. v W.W.R.S. Automotive Inc., 7 Misc 3d 134[A], 2005 NY Slip Op 50742[U], *2 [App Term, 2d & 11th Jud Dists 2005], quoting Bank of NY v Forlini, 220 AD2d 377, 378 [1995]). Relief is appropriate upon a finding of "substantial compliance" with the stipulation (Rockaway One Co. v Williams, 3 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2004]; see also AMA Realty LLC v Farfan, 4 Misc 3d 131[A], 2004 NY Slip Op 50702[U] [App Term, 2d & 11th Jud Dists 2004]).

Here, the record demonstrates that Pat McCabe substantially complied with the terms of the stipulation and that her default was minimal. Although she was 18 days late making a single payment, her lateness was due to a minor, inadvertent error and all subsequent payments, which were accepted by plaintiff, were tendered timely and in full. We conclude that, under the facts of this case, the Civil Court did not improvidently exercise its discretion in granting the motion to vacate the judgment and reinstate the stipulation. Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. Decision

Date: January 26, 2012

20120126

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