SIMONS v. MILLER

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Supreme Court, Appellate Division, First Department, New York.

David SIMONS, Plaintiff-Appellant, v. Mary MILLER, et al., Defendants-Respondents.

Decided: May 25, 2000

SULLIVAN P.J., ROSENBERGER, WILLIAMS, WALLACH and FRIEDMAN, JJ. Plaintiff-Appellant, Pro Se. Defendants-Respondents, Pro Se. Steven E. Magid, for Defendants-Respondents.

Order, Supreme Court, New York County (Franklin Weissberg, J.), entered May 13, 1999, which denied plaintiff's motion for summary judgment, granted the cross motion of defendants Justin Tseng and Patricia Tseng for summary judgment dismissing the complaint as against them, and awarded summary judgment pursuant to CPLR 3212(b) dismissing the complaint as against the remaining defendant, Mary Miller, unanimously affirmed, with costs.

The so-ordered stipulation between plaintiff and defendant Miller was clear and unambiguous and, as such, was properly interpreted by the motion court (see, Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029).   The stipulation provided that “[defendant Miller] had the right to manage the apartment as [she] wishe[d] including the right to sell [it] until & unless plaintiff pays the $15,000.”   As the motion court found, defendant Miller's sale of the apartment on July 2, 1998, 19 days before the final date on which defendant could have made payment under the stipulation, was in conformity with this proviso.   The sale did not abrogate plaintiff's financial interest in the sale proceeds, which plaintiff could have preserved had he tendered timely payment thereafter.   Plaintiff, however, ultimately failed to tender payment until August 3, 1998, after the time permitted in the stipulation.

MEMORANDUM DECISION.