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

Edward G. MUNDINGER, et al., Appellants, v. Edward L. CLARK, et al., Respondents.

Decided: June 30, 1997

Before ROSENBLATT, J.P., and COPERTINO, PIZZUTO, KRAUSMAN and FLORIO, JJ. Tananbaum & Sibener, Commack, (Paul S. Sibener, of counsel), for appellants. Long, Tuminello, Besso, Seligman, Quinlan & Werner, Bay Shore, (David H. Besso, of counsel), for respondents.

In action to recover damages, inter alia, for a breach of a shareholders agreement, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), dated July 15, 1996, which, inter alia, denied their application to, among other things, enjoin the defendants from proceeding with a warrant of eviction.

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, 522 N.Y.S.2d 292).   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, 116 N.E. 789;  Matter of Badstein, 225 A.D.2d 691, 640 N.Y.S.2d 141;  Hadfield v. Colter, 188 A.D. 563, 577, 177 N.Y.S. 382;  cf., Matthews v. Bearce, 65 A.D.2d 853, 410 N.Y.S.2d 166).   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.


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