Opinion
Index No. SC-001619-20KI
02-10-2022
Monique D. KYLE-LEWIS, Plaintiff, v. OPTIMUM, Defendant.
Monique D. Kyle-Lewis, Pro se Plaintiff Steven P. Orlowski Bleakley Platt & Schmidt, LLP One North Lexington Avenue White Plains, New York 10601 (914) 949-2700 Counsel for Defendant
Monique D. Kyle-Lewis, Pro se Plaintiff
Steven P. Orlowski Bleakley Platt & Schmidt, LLP One North Lexington Avenue White Plains, New York 10601 (914) 949-2700 Counsel for Defendant
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
ORDER TO SHOW CAUSE 1
AFFIRMATION IN SUPPORT & EXH. ANNEXED 2-3
INTRODUCTION
This Honorable Court Decides and Orders after oral argument, Defendant's Order to Show Cause to Vacate Judgment Entered Per Default on Stipulation of Settlement to Deem check in the stipulation of settlement amount as sufficient satisfaction of the stipulation of settlement, or alternatively, to vacate and set aside the stipulation of settlement in order to restore to calendar for Trial upon the merits, for the reasoning as set forth below, is hereby DENIED .
PROCEDURAL AND FACTUAL HISTORY
Plaintiff commenced this action on November 10, 2020 by filing Statement of Claim against Defendant Optimum for failure to provide proper services. Optimum represented by counsel and Pro-Se Plaintiff entered into settlement agreement on the Trial Date, November 16, 2021, upon execution by both parties of Civil Court form numbered "CIV-GP-31 (Revised1/03)" titled "STIPULATION OF SETTLEMENT and AFFIDAVIT UPON DEFAULT" which in part states:
Optimum is a cable, tv, phone provider for a fee to the consumer.
"It is hereby agreed by and between the parties that this claim is settled for the sum of $300, to be paid by (Debtor) [Defendant] on or before 12-16-21 to (Creditor) [Plaintiff] In the event Debtor fails to make payment as agreed to above, Creditor, upon completing the Affidavit below setting forth such default, shall be entitled to: a) enter Judgment, without further notice to the Debtor, for the amount originally sued for less any payments made, together with interest and disbursements."
(affirmation in support, exhibit A ).
Document Corroborated by court files.
On December 9, 2021, 5:39 PM, Defendant allegedly emailed Plaintiff stating:
"This is simply to advise that we received the Stipulation of Settlement in your case, so a check for $300.00 was processed. Due to COVID-19 and USPS mail delay, please allow three weeks or more to receive the check."
(affirmation in support, exhibit B ). Defendant further provided an alleged page of paper headlined as "Account Activity" containing language as to alleged issuance of $300.00 check to Plaintiff, December 10th "Refund Payment" and December 11th "check issuance withdrawal" (affirmation in support, exhibit C ). Both parties concede that a check was issued to Plaintiff in the amount of $300.00 dated, December 14, 2021. However, on January 20, 2021, Plaintiff filed Affidavit upon Default of Stipulation for Optimum's breach of stipulation of settlement in failing to pay to Plaintiff the settlement amount of $300.00 "on or before 12/16/21" and Clerk of the Court entered "Judgment Entered Per Default on Stipulation of Settlement" in the amount of $5,519.32. Plaintiff stated that she received the check dated December 14, 2021 on December 21, 2021. Consequently, Optimum filed this instant Order to Show Cause to vacate Judgment Entered Per Default on Stipulation of Settlement in the amount of $5,519.32; Deeming $300.00 check dated December 14, 2021 to be sufficient satisfaction of the stipulation of settlement dated November 16, 2021; and at oral argument, in the alternative to also vacate and set aside stipulation of settlement and restore to calendar for Trial on the merits in which Optimum expected to prevail.
Document not corroborated for the truth contained therein, as is not verified by affidavit of one with personal knowledge nor is it presented as an exception to hearsay rule as business record used in the ordinary course of business.
Id.
DISCUSSION
It is well established law, "a stipulation of settlement is a contract, enforceable according to its terms [and] under general principles of contract interpretation, when the intent of the parties can be gleaned from the face of the instrument extrinsic evidence may not be considered" ( Saca Discount Corp. v 33-02 30th Ave., LLC , 182 AD3d 619, 620, 120 NYS 3d 806, 806, 2020 NY App Div LEXIS 2560, *2-3, 2020 NY Slip Op 02488, 1-2 [2d Dept 2020], citing Pierot v Marom, 172 AD3d 928, 929, 100 NYS 3d 364 [2d Dept 2019], quoting ATS-1 Corp. v Rodriguez , 156 AD3d 674, 676, 67 NYS 3d 60, Scherer v North Shore Car Wash Corp. , 72 AD3d 927, 929, 901 NYS 2d 281 [2d Dept 2017] ; see also Chimart Assoc. v Paul , 66 NY2d 570, 572-573, 489 NE2d 231, 498 NYS 2d 344 [1986] ). "However, when language of a stipulation is ambiguous, that is, ‘reasonably susceptible of more than one interpretation,’ extrinsic or parole evidence may be permitted to determine the parties’ intent as to the meaning of that language" ( Pierot v Marom , 172 AD3d 928, 930, 100 NYS 3d 364, 366, 2019 NY App Div LEXIS 3647, *4, 2019 NY Slip Op 03638, 2, 2019 WL 2030007 [2d Dept 2019], quoting Scherer v North Shore Car Wash Corp. , 72 AD3d at 929 [2d Dept 2010], quoting Chimart Assoc. v Paul , 66 NY2d at 573 ; see Fernandez v Price , 63 AD3d 672, 675, 880 NYS2d 169 [2009] ). "Stipulations of settlements are favored by courts and are not to be lightly set aside particularly where the party seeking to vacate the stipulation was represented by counsel" ( McKenzie v Vintage Hallmark, PLC , 302 AD2d 503, 503-504, 755 NYS 2d 288, 288-289, 2003 NY App Div LEXIS 1619, *1-3 [2d Dept 2003] ). Movant must demonstrate compelling sufficient evidence of causation such as fraud, collusion, mistake or accident to relieve movant from the consequences of its failure to abide and comply with its agreement as stated in the stipulation made in settlement of litigation (see Bethea v Thousand , 127 AD3d 798, 799, 6 NYS 3d 584 [2015] ; Hallock v State of New York , 64 NY2d 224 [1984] ; Rainone v Davenport , 121 AD3d 1444, 1445-1446, 995 NYS 2d 643 [2014] ; HCE Assoc. v 3000 Watermill Lane Realty Corp. , 131 AD2d 543, 544, 516 NYS 2d 269 [1987] ; Premier Ford NY, Inc. v Ryan , 162 AD3d 699, 701-702, 79 NYS 3d 199 [2018] ; Eldridge v Shaw , 99 AD3d 1224, 1225-1226, 952 NYS2d 360 [2012] ).
In McKenzie v Vintage Hallmark , plaintiff entered confession of judgment in the amount of $1,770,975.12 against defendant upon its failure to pay agreed upon settlement amount of $750,000.00 within 30 days with an additional 7-day curative period as of date of execution of the stipulation of settlement ( McKenzie v Vintage Hallmark, PLC , 302 AD2d at 503-504 ). On the same day that Plaintiff McKenzie entered confession of judgment, plaintiff received defendants’ settlement payment in the amount of $750,000.00. Defendants therefore moved to vacate judgment entered for the entire amount sued upon in the amount of $1,770,975.12. Appellate Division 2nd Department held:
"Accordingly, the plaintiff was clearly acting within his rights pursuant to the terms of the stipulation of settlement when he entered the judgment by confession against the defendants. The defendants ask this Court to exercise its power in equity to relieve them from the harsh consequences of their default under the stipulation of settlement, and vacate the judgment by confession. We decline to do so. A stipulation of settlement is a contract, enforceable according to its terms. Moreover, literal enforcement of the terms of the stipulation of settlement is not unjust in this case, where the agreement was negotiated by sophisticated parties, all of whom were represented by counsel, and the default was neither inadvertent nor trivial"
(id. citing Charter Realty & Dev. Corp. v New Closeline Roc Assoc., 293 AD2d 438, 739 NYS 2d 456 [2002] ); see Key Int. Mfg. v Stillman , 103 AD2d 475, 480 NYS 2d 528 [1984], mod on other grounds 66 NY2d 9244, 489 NE2d 764, 498 NYS 2d 795 [1985] ; compare Bank of NY v Forlini , 220 AD2d 377, 631 NYS 2d 440 [1995] ; Weitz v Murphy , 241 AD2d 547, 661 NYS 2d 646 ; Goldstein v Goldsmith , 243 AD 268, 276 NYS 861 [1935] ).
In this instant matter, the amount in controversy pales in comparison to McKenzie. However, the law of the case is the same. More so compelling here, the movant requesting relief from harsh consequences of its own action or rather inaction in its default is a large publicly traded corporate juridical entity, a creature of the state, which derives its existence from the state to provide goods and services to the public consumer. Optimum is invariably represented by sophisticated counsel well versed in the intricacies of the law and therefore is indeed in a much better negotiating posture than that of this Pro-se Plaintiff. Moreover, it is clear by Optimum's email correspondence that it intended to not comply with the stipulation of settlement, where it stated that it would take 3 weeks for payment to be received by Pro-se Plaintiff. Clearly a breach of the executed terms of the stipulation of settlement. So much so, Optimum's email to Plaintiff clearly evidences a repudiation of the stipulation of settlement in failing to pay on or before December 16, 2021 as per the stipulation of settlement. The New York Court of Appeals has held that such a wrongful repudiation of a contract as is this stipulation of settlement by one party before the time for performance entitles the non-repudiating party to immediately claim damages for a total breach as an anticipatory breach. Further, Optimum's repudiation evidences bad faith. Optimum's justification as to delay in mailing of the receipt of the payment is disingenuous at best. Optimum has readily available at its disposal and at its beck and call many options for timely delivery services, which it readily utilized for its benefit in order to serve this instant order to show cause upon this Pro-se Plaintiff. Particularly of note here, it is common knowledge and court takes judicial notice that December 16, 2021 is a Christmas high mailing demand period fraught with daily public notices and warnings of delays in all forms of mail deliveries. Optimum showed bad faith in its nonchalant flouting of its duly agreed upon litigation settlement agreement in This Court with this unsophisticated in the law Pro-se Plaintiff. It is bad public policy to allow behemoths of Goliath stature corporate juridical citizens such as Optimum to flout its agreements against unequally yoked pro se litigants, such as Plaintiff here. This Court allowing such relief of the consequence of Optimum's own making, would further foster the distrustful perception of the public that non-sophisticated pro se litigants, such as here, that indeed the corporate behemoth, uber rich, famous and well connected are above the law and favored by the courts in its dispensation of justice in its exercise of discretion in equity. Particularly, as here in small claims court, which is indeed considered The People's Court. Optimum's argument that issuance of the check on December 10, 11, or 14, 2021 satisfies its responsibility in compliance with its agreement pursuant to the stipulation of settlement is without merit. The stipulation of settlement clearly and unambiguously states "paid on or before December 16, 2021," not, issued on or before December 16, 2021. Optimum strains credulity in its argument that issuance of the check is tantamount to payment. Or rather colloquially stated - the check is in the mail. Certainly, Optimum would not accept this argument to satisfy its business model of monthly billing to its consumers due by or pay by dates. In McKenzie , both plaintiff and defendants were businesses represented by learned counsel in the law and the Appellate Division Second Department would not relieve business movant from the harsh consequences of its default as against another equally yoked business. Therefore, how so in any application of the established law, may This Court in good conscience in its exercise of its discretion in equity, relieve this behemoth corporate entity represented by counsel of the consequences of its default as against Pro-se Plaintiff in her exercise of her rights pursuant to the very clear on its face, natural language, devoid of any legalese, nor ambiguity nor open to interpretation stipulation of settlement, to enter full judgment in the amount of $5,000 plus interest, costs and disbursements. This Court declines to so do.
"An anticipatory breach of contract by a promisor is a repudiation of [a] contractual duty before the time fixed in the contract for performance has arrived" (Princes Point LLC v Muss Dev. LLC , 30 NY3d 127, 133 [2017)).
For the foregoing reasons, All Stays are hereby Vacated and Defendant's Order to Show Cause to Vacate Default Judgment is hereby DENIED .
The foregoing constitutes the opinion, decision, and order of This Honorable Court.