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Shouela v. Shouela

Shouela v Shouela 2024 NY Slip Op 30572(U) February 23, 2024 Supreme Court, Kings County Docket Number: Index No. 501280/2021 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 02/23/2024 08:59 AM INDEX NO. 501280/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 02/23/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ·- - -·- -·--- - - - -· ·--·- - - - -·- -·- - - --- - ---.-- - - . . ·- - -x. ELI SHOUELAi Plaintiff, Decision and order

- against ., ;. Index No. 50l28O/202 1

ISAAC SHOUELA and 1515 CHURCH AVENUE REALTY LLC, Defendant s, Febrtiary 23~ 2024 ~-. -.--·-. - . -·- .-.--. --- . ----·. .----.-.-- . --. ·... --x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #⁴

The plaintiff has moved seeking to vacate a stipulatio n

entered between the parties on January 9, 2023. The defendant s

oppose the motion. Papers were slibmi tted by the patties and

arguments held. After reviewing all the arguments this court now

makes the following determina tion.

As recorded in a prior order, the plaintiff Eli and Isaac

are brothers. While Eli was involved in a divorce proceedin g, his

broth~r Isaac recommend ed that Eli transfer propertie s to him to

avoid satisfying any divorce judgement and that when such divorce

proceeding terminate d he would transfer the propertie s back to Eli.

Eli accepted that advice and in October and November 2015 Eli

transferre d propertie s locateci at 1797 East 22 Street, 1821 East 22

Street, 1946 East 21 Street and 1721 East 8 Street all located in

Kings County. After the conclusion of the divorce proceedin gs Eli

asked Isaac to return the propertie s a·nd Is_aac refused. This

lawsuit followed.

On January 9, 2023 the parties ente.ted intQ a stipulatio n

FILED: KINGS COUNTY CLERK 02/23/2024 08:59 AM INDEX NO. 501280/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 02/23/2024

Footnotes

[1] of 4 [* 1] Cancelin g the noti.ce of pendenc y filed concerni ng 151,5 Church Avenue Realty LLC anci all ciaims regardin g ·the Chut'ch Avenue Premises , w i t.h pre j ud;i.ce. The plainti ff :now moves. se:eking to ' vacate that stipula tion on the grounds. the stipulat ion should have only included language the Claims were dismisse d withollt prejudic e. The plainti ff argues he .specifi cally instruct ed his counsel to only ag:t;.ee to dismi.ss the claims without prejqdic ~. The plainti. ff seeks to. vacate that stipulat iqn and i;ime~d the complain t: se.eking to as,sert cau.se$ of ac,tion. for a. cons.tru ctive trust and other claims re:garq_Jp g th,$.t property ... The defehda. nt opposes the. motion arguing •the.re is no basis upon which to vacat~ the s:tipulat: ~on·. Conclus ions o·f Law It is general ly true that abs·ent fraud, col,lusio n or rnis·take a stipqla. tion that ·is fa:i.t· ·on its face Will 1:Je enforced {Bergho ff argumen t that a mistake wa$ made as grounds irt which to v~c~te the stipulat ion trtust be a :rinitual one proved by cle9-r and convinc ing evidence (In Re Janet L., .287 AD2d 86:5, 731 NYS2d 299 [3·.i:d Dept. r 2001]) · and the mistake mµ.st be of a nature which the·n does not reflect the rrieeting of the minds between the part;.ies (Vermily ea v. Ve'ttnily ea, 224 .AD2d 759, 636'. NYS2d .95.3 [3rd Dept~·, T996]) . The-refo re, t.he assertio n that the stipulat ion was erroneou s wc,µld steneral1 y be an ins,uffic ient bas.is upon which to vacate t.he 2

[2] of 4 [* 2] stipulation {~-,. Natol.e v. N-atole;, 256 AD2d 5-S-8_, 682 NYS2d 864 [2-d Dept .. , 19Q.8] i . This ts. espe.ci 9 11Y true where there was only a unilateral rnistake_ wi thb_ut any evidence b.f fraud, ·ct1.1ress or Other inequit-ahle coli.duct that 'would -demand that -the stipulation. be vacated (Village: o.f Waterford v. Camproni, 2'00 AD2ci. 930, 607 NY.S2d

[4] 3 3 [°3 rd Dept. , l 9,9-4] l -~- The pl.ainti:!:f asserts that he, em,;1.iled his. prior counsel and indicated the. stipLilatiqr). sh_ol.ild be executed 'without prejudice' to secure ·claims th_at may arise in the future (-see, email from Eli _Shouela_, dated January 9, 2-023 [_NYSCEF· D.oc. No. 71]). rurttier, counsel for the plaintiff electronical ly signed the stipulation the following day (see, St:ipJJ.1cJ.tion o·f i?art;i...al D:;L.scontipuan ce [J\JYS.CEF Doc, No .. 61])__. Even if Eli's counsel saw the email. from Eli prior to completing the stipulation and ignored that request, at its core that i-S: merely a u•nilat.eral mistake which is nqt. gro.unds t_o vacate the sti:pulation. .The Ci3.se of Structured Asset Sales Group LLC v. Freeman, 45_· .AD"Jd 327, 844 NYS2d 6-99 [Pt Dept., 2007] is ·instructive.. In that ca·/:'ie th_e plaintiff entered into :a sti.p.ulat.ipn to dis.continue an action 'with prejudice' . The plaintiff then s-ought to v~cate tbe stip-µlation :o.n the gro;unds they -did not re~l..ize the stipulation was 'with prejudice'.. The. court denied the request noting the. plaintiff possessed the stipulation: for two me>nths before-- signing it. In this, case, ·the plaintiff c!-nd his- counsel $urely maintained the stipulation prior to executing it ahd 3 3 of 4 [* 3] any mistake in its drafting is not grounds to vacate it (see, Tata v. City of New York and 129 West 29 th Associate s, 2010 WL 4093943 [Supreme Court New York County 2010]). In a case where all the parties and the court clearly contempla ted the claims were being dismissed without prejudice and somehow the language of the stipulatio n included the words 'with prejudice ' then a different result may be appropria te (see, Karniol v. Good Move Trucking Inc.,

[281] AD2d 287, 722 NYS2d 143 [Pt Dept., 2001}). However, the natural understan ding of the stipulatio n, that the claims were being dismissed with prejudice to provide finality to the matters, is readily apparent ('Singleton Managemen t Inc.. v. Compere, 243 AD2d 213, 673 NYS2d 381 [Pt Dept., 1998]). Therefore , there is no basis in which to vacate the stipulatio n. Moreover, a party seeking to vacate a stipulatio n must do so with reasonable promptnes s (see, Hallock v. State Of New York, 64 NY2d 224, 485 NYS2d 510 [1984]) . Iri this case the stipulatio n was executed in January and the motion seeking to vacate the stipulatio n was filed in Ju,ly, six months later. There has been no explanatio n for the lohg' delay in seeking its vacatur. Therefore , based on the toregoihg , the mot~on~ seeking to vac:ate the stipulatio n arid to amend the complaint are denied. So ordered. ENTER: DATED: February 23, 2023 Brooklyn N,Y. Hon. Leon Ruchel JSC /" 4 4 of 4 [* 4]