ANITA A. VITULLO, PLAINTIFF-RESPONDENT,
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (MARCO CERCONE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILKOFSKY, FRIEDMAN, KAREL & CUMMINS, NEW YORK CITY
(HARRY A. CUMMINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND
from an order of the Supreme Court, Oneida County (Norman I.
Siegel, J.), entered July 7, 2015. The order denied
defendant's motion to enforce the settlement agreement
entered between the parties and to dismiss the complaint.
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, defendant's motion is
granted, and the complaint is dismissed.
Plaintiff commenced this action against defendant, her
insurer, to recover for property damage that she sustained in
a fire on her premises. After the fire, plaintiff submitted
claims covering damages to the main house, pavers,
landscaping, a carriage house, and other items on the
premises, which defendant refused to pay. After plaintiff
commenced this action, the parties entered into a stipulated
settlement agreement (agreement) under which defendant
compensated plaintiff for certain enumerated items, and the
parties otherwise agreed to abide by an appraisal "only
with respect to the actual cash value of [p]laintiff['s]
dwelling as it stood immediately before the fire loss."
The parties agreed that, once the appraisal was complete and
plaintiff was paid, they would execute any documents
necessary to effect a discontinuance of the action. The
appraisers proceeded to calculate the value of the main
house, as well as each outstanding item for which plaintiff
had submitted a claim. Defendant paid plaintiff the appraised
value of the main house only, on the understanding that
plaintiff had agreed to forego additional compensation.
Plaintiff disagreed with defendant's construction of the
agreement and refused to stipulate to a discontinuance of the
appeal No. 1, we conclude that Supreme Court erred in denying
defendant's motion seeking to enforce the agreement and
to dismiss the complaint. Generally, a stipulated settlement
is binding upon a party if "it is in a writing
subscribed by him or his attorney" (CPLR 2104).
"Stipulations of settlement are favored by the courts
and not lightly cast aside" (Hallock v State of New
York, 64 N.Y.2d 224, 230; see Matter of Ecogen Wind
LLC v Town of Prattsburgh Town Bd., 112 A.D.3d 1282,
1284), "and a party will be relieved from the
consequences of a stipulation made during litigation only
where there is cause sufficient to invalidate a contract,
such as fraud, collusion, mistake or accident"
(Ecogen Wind LLC, 112 A.D.3d at 1284; see
Hallock, 64 N.Y.2d at 230). Inasmuch as both parties
executed the agreement and neither party has asserted that
there is cause to invalidate it, we conclude that the
agreement constitutes an enforceable contract.
contract may be enforced summarily where its terms are
unambiguous (see Baumis v General Motors Corp., 102
A.D.2d 961, 962). "Whether a contract is ambiguous is a
question of law[, ] and extrinsic evidence may not be
considered unless the document itself is ambiguous"
(South Rd. Assoc., LLC v International Bus. Machs.
Corp., 4 N.Y.3d 272, 278; see Non- Instruction
Adm'rs & Supervisors Retirees Assn. v School Dist. of
City of Niagara Falls, 118 A.D.3d 1280, 1281).
Furthermore, " extrinsic and parol evidence is not
admissible to create an ambiguity in a written agreement
which is complete and clear and unambiguous upon its
face' " (W.W.W. Assoc. v Giancontieri, 77
N.Y.2d 157, 163; see Non-Instruction Adm'rs &
Supervisors Retirees Assn., 118 A.D.3d at 1281). We
agree with defendant that the term dwelling
unambiguously refers only to the main house on the premises.
A dwelling is defined as "a building or
construction used for residence" (Webster's Third
New International Dictionary 706 ). Moreover, the
recitals contained in the agreement note that the fire
"resulted in a total loss to the dwelling, " and
the main house indisputably was the only building on the
premises that sustained a total loss. Defendant fulfilled its
remaining obligations under the agreement by paying plaintiff
the appraised value of the main house, and thus is entitled
to a discontinuance of the action. We therefore conclude that
the court erred in denying defendant's motion seeking to
enforce the settlement agreement and to dismiss the
foregoing reasons we conclude that, in appeal No. 2, the
court properly denied plaintiff's motion for summary
judgment inasmuch as plaintiff failed to demonstrate that her
construction of the agreement is " the only construction
[that] can fairly be placed thereon' " (DiPizio