Opinion
June 30, 1997
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the order is affirmed, with costs.
We agree with the plaintiffs that the letter of the defendants Edward L. Clark and Alba B. Clark dated July 21, 1995, setting forth new terms to the May 1, 1995, stipulation of settlement constituted a repudiation of the stipulation ( see, Sunshine Steak, Salad Seafood v. W. I. M. Realty, 135 A.D.2d 891). However, the plaintiffs did not seek rescission but instead elected to hold the Clarks to the original stipulation of settlement and demanded performance in accordance with it. Thus, the plaintiffs kept the stipulation agreement alive for the benefit of both parties, so that either party could take advantage of supervening events ( see, Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N.Y. 120, 126; Matter of Badstein, 225 A.D.2d 691; Hadfield v. Colter, 188 App. Div. 563, 577; cf., Matthews v. Bearce, 65 A.D.2d 853). The plaintiffs, by failing to vacate the premises on the agreed-upon date of July 31, 1995, breached the stipulation of settlement, and therefore may not now seek to rescind the stipulation of settlement based on the Clarks' anticipatory breach.
Rosenblatt, J.P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.