VARLEY v. ELK 300 83 LLC (2019)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered June 29, 2018, which denied plaintiffs' motion to restore this settled action to the calendar, to compel defendant landlord's adherence to the stipulation of settlement, and for an award of continuing damages and legal fees, unanimously affirmed, without costs.

Plaintiffs were long-term tenants of an apartment in a building, owned by defendant, that was severely damaged and rendered unsafe by a fire in February 2017.  Plaintiffs commenced this action seeking, inter alia, access to their personal property left in the apartment, and the parties entered into a confidential settlement agreement in July 2017.  To the extent the terms of the agreement have been disclosed, the parties agreed to terminate plaintiffs' lease, and agreed that defendant could not dispose of plaintiffs' personal property until after the building was deemed safe and plaintiffs were allowed access to remove their belongings.  In the event of a breach or threatened breach of the agreement, the opposing party could seek an injunction and reasonable attorneys' fees.

Contrary to plaintiffs' contention, defendant's September 2017 letter updating them on upcoming repairs, and seeking their input concerning items that needed to be relocated or discarded in anticipation of the repairs, did not constitute a threatened breach of the settlement agreement.  Defendant merely sought a mutual understanding to determine which items in the portion of the unit needing repair were not salvageable due to fire, smoke, water, or mold damage (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984];  Hotel Cameron, Inc. v. Purcell, 35 A.D.3d 153, 155, 827 N.Y.S.2d 13 [1st Dept. 2006]).

Furthermore, plaintiffs rely on facts concerning subsequent disposition of their property that are dehors the record and thus cannot properly be considered on appeal (see Kellogg v. All Sts. Hous. Dev. Fund Co., Inc., 146 A.D.3d 615, 617, 46 N.Y.S.3d 30 [1st Dept. 2017];  Martin v. Manhattan & Bronx Surface Tr. Operating Auth., 198 A.D.2d 160, 160–161, 604 N.Y.S.2d 65 [1st Dept. 1993]).