Nikolaus v. Gasiorowski

Appeal from a judgment of the County Court of Schoharie County in favor of plaintiff, entered April 11, 1977, upon a decision of the court at a Trial Term, without a jury. During the course of an action to foreclose a mechanic’s lien, a settlement was reached whereby plaintiff agreed to perform certain services to complete foundation work and other items at a construction site owned by the defendant in exchange for scheduled payments totaling $2,760. The specifics were dictated by the court, stenographically transcribed, and agreed to by the parties as a stipulation. The trial court marked the matter "settled in accordance with the stipulation put on the record.” When defendant thereafter refused payment, contending that the work actually performed had not been satisfactorily completed in accordance with the agreement, plaintiff obtained an order to show cause seeking to enforce the terms of the stipulation. Although defendant initially objected to the jurisdiction of the court to proceed on that basis, a trial of the issues ensued and the court ultimately directed a judgment in favor of plaintiff. On this appeal, defendant asserts that the underlying action was terminated by the stipulation and that a new agreement arose which could be enforced only by way of separate action (see Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Putnam v Otsego Mut. Fire Ins. Co., 45 AD2d 556; Owens v Lombardi, 41 AD2d 438). However, the presumption is that a settlement agreement does not terminate an action and it may be overcome "only upon a showing that the parties have executed an express, unconditional stipulation of discontinuance, or have entered judgment in accordance with the terms of the settlement” (Teitelbaum Holdings v Gold, 48 NY2d 51). Since no such judgment was entered in this case, the question is whether the foregoing transaction represented an express and unconditional stipulation of discontinuance. Unlike the situation presented in Yonkers (supra), where the language of the agreement provided that the litigation "is * * * terminated” and the case was subsequently marked "settled and discontinued” (247 NY 435, 440, 442), the trial court here simply noted that the action and counterclaim "are to be discontinued” and marked the matter "settled in accordance with [the agreement].” In our opinion, these comments do not adequately rebut the presumption because they do not reflect an unambiguous present intent to effect an immediate discontinuance. The apparent failure to discharge the mechanic’s lien reinforces this view. There was a mere arrangement requiring further performance by both parties, and their stipulation of settlement was not intended to nor did it conclude the action. Their agreement did not encompass an unconditional discontinuance and, therefore, it was proper for plaintiff to have its terms enforced by way of motion (Teitelbaum Holdings v Gold, supra; cf. Thompson Med. Co. v Benjamin Pharms., 4 AD2d 504). Judgment affirmed, with costs. Greenblott, Kane and Herlihy, JJ., concur.