POPLAR REALTY LLC v. PO (2003)

Appeals by occupant from four post-judgment orders of the Civil Court, Kings County, in a summary holdover proceeding, (1) dated August 24, 2001 (O. Chin, J.), denying his motion to vacate a stipulation settling the proceeding;  (2) dated October 4, 2002 (M. Pinckney, J.), granting, on default, landlord's motion to amend the petition;  (3) dated November 15, 2002 (M. Pinckney, J.), denying his application for an order to show cause seeking to vacate the stipulation;  and (4) dated December 12, 2002 (M. Pinckney, J.), for the same relief or, in the alternative, for a stay of the warrant of eviction.

Appeals from orders dated October 4, 2002 and November 15, 2002 unanimously dismissed.

Orders dated August 24, 2001 and December 12, 2002 unanimously affirmed without costs.

 No appeal lies from the denial of the November 15, 2002 application for an order to show cause (CCA 1702;  Matter of Allah v. Scheinman, 61 N.Y.2d 755, 472 N.Y.S.2d 922, 460 N.E.2d 1357;  Colucci v. Jennifer Convertibles, 283 A.D.2d 224, 225, 724 N.Y.S.2d 840;  cf. CPLR 5704 [b] ).  Similarly, no appeal lies from an order entered upon an appealing party's default (CPLR 5511;  O'Connell v. Kerson, 291 A.D.2d 386, 387, 736 N.Y.S.2d 895;  Adamson v. Evans, 283 A.D.2d 527, 724 N.Y.S.2d 760).   Thus, the appeal from the order of October 4, 2002 order must also be dismissed.   Occupant's remedy was to move to vacate the default and appeal, if necessary, from the resulting order (Kastberg v. JLM Land Dev. Corp., 280 A.D.2d 453, 719 N.Y.S.2d 893).

 We affirm the August 24, 2001 and December 12, 2002 orders, which denied occupant's motions to vacate the parties' settlement stipulation, inter alia, on the ground that as a native Russian speaker, he did not understand its terms.   Written settlement stipulations are favored by the courts “arid will not be set aside in the absence of fraud or overreaching” (Matter of Galasso, 35 N.Y.2d 319, 321, 361 N.Y.S.2d 871, 320 N.E.2d 618), “mistake ․ or duress” (Natole v. Natole, 256 A.D.2d 558, 559, 682 N.Y.S.2d 864), or other “good cause” (Matter of Frutiger, 29 N.Y.2d 143, 150, 324 N.Y.S.2d 36, 272 N.E.2d 543) sufficient to overcome the policy to strictly enforce such agreements, deemed “essential to the management of court calendars and the integrity of the litigation process” (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   On its face, the stipulation's uncomplex and unremarkable terms represented an equitable and balanced surrender of interests and occupant otherwise failed to raise a triable issue of any matter which, if proved, would implicate the stipulation's validity.

 Moreover, a contract's signatory “is presumed to know the contents of the instrument [ ]he signed and to have assented to [its] terms” (British W. Indies Guar. Trust Co. v. Banque Internationale A Luxembourg, 172 A.D.2d 234, 567 N.Y.S.2d 731;  see also Imero Fiorentino Assoc. v. Green, 85 A.D.2d 419, 420, 447 N.Y.S.2d 942).  “[A]n inability to understand the English language, without more, is insufficient to avoid this general rule” (Maines Paper & Food Service Inc. v. Adel, 256 A.D.2d 760, 761, 681 N.Y.S.2d 390.)  “Persons who are ․ illiterate ․ must make a reasonable effort to have the contract read” (Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208;  Sofio v. Hughes, 162 A.D.2d 518, 520, 556 N.Y.S.2d 717) and may not overturn a stipulation on the grounds of ignorance of its contents absent a valid explanation why this was not done (Kenol v. Nelson, 181 A.D.2d 863, 866, 581 N.Y.S.2d 415;  see also Kassab v. Marco Shoes, 282 A.D.2d 316, 723 N.Y.S.2d 352 [if insufficiently proficient in English to understand a contract's terms “it (is) incumbent upon (a signor) to make a reasonable effort to have the document explained] ).”   Thus, occupant is deemed to have understood and acknowledged the stipulation's terms, notwithstanding his alleged linguistic limitations, absent an explanation why he failed to make a “reasonable effort” to “have the document read” (see Sofio v. Hughes, 162 A.D.2d at 521, 556 N.Y.S.2d 717 [proof that the reader “misrepresented the nature of the document” may relieve a non-English-speaking party from its obligations] ).   In any event, based upon its personal observations of occupant during his participation in several court appearances, lengthy negotiations;  and authorship of court documents, the court was persuaded that occupant understood satisfactorily the nature of the proceedings and the stipulation's few and uncomplicated terms, and we perceive no grounds to overturn that determination.