Opinion
09-25-2015
Brenda ZIMMERMAN, Plaintiff–Appellant, v. WEST NICHOLAS ASSOCIATES LLP., Defendant–Respondent.
Order (Gerald Lebovits, J.), entered April 22, 2015, affirmed, without costs. Appeal from order (Jose A. Padilla, Jr., J.), entered October 10, 2014, dismissed, without costs, as nonappealable (see CPLR 5511 ).
Civil Court providently exercised its discretion in denying plaintiff's motion to vacate her default. Even assuming that plaintiff set forth a reasonable excuse for failing to respond to defendant's motion for summary judgment, plaintiff did not demonstrate the merits of her claim. The claim, as pleaded, sought to litigate a rent habitability "counterclaim [that] wasn't heard" in a prior summary proceeding between the parties. However, plaintiff is barred from litigating that counterclaim in this action because the counterclaim had been resolved pursuant to a January 28, 2015 stipulation executed in the prior proceeding, whereby plaintiff was granted a credit of $1,062.70 in settlement of "all claims, counterclaims and abatement claims" (see Fifty CPW Tenants Corp. v. Epstein, 16 AD3d 292 [2005] ). To the extent the prior stipulation expressly left unresolved habitability claims for certain time periods, we note that the underlying claim does not relate to those periods (see Katz Park Ave. Corp. v. Jagger, 46 AD3d 186, 191 [2007], affd 11 NY3d 314 [2008] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.