Berkshire Realty Holdings v Seem (2004 NY Slip Op 51744(U))

Berkshire Realty Holdings v Seem

2004 NY Slip Op 51744(U)

Decided on December 15, 2004

District Court Of Nassau County, First District

Marber, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Co-respondent, Kelly Seem's motion for an order vacating and setting aside the judgment and warrant of eviction entered herein based upon a settlement agreement is denied.

The issue presented by the instant motion is whether the husband/co-respondent has authority to settle a case on behalf of the co-respondent wife by written agreement signed by the husband only, which has the language that "James Seem is signing on behalf of himself and his wife Kelly Seem." In the instant motion, the movant argues, inter alia, that her husband had no consent to enter into the herein settlement agreement. The petitioner's attorney counters movant's argument by stating that co-respondent, James Seem spoke to movant over a cell phone in front of him and went over every item of settlement agreement to which movant agreed.

A settlement agreement is considered binding, even where one co-party is not present and where another present co-party does not have actual authority, if the Court determines that the present co-party's actions indicate apparent authority to act for said absent co-party. "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction" (citation omitted) (Clark v. Bristol-Meyers Squibb and Co., 306 AD2d 82, 761 NYS2d 640, 643[1st Dept 2003]).

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Index No. SP 3963/04

In this case, there is apparent authority for co-respondent, James Seem to act on movant's behalf by the uncontradicted allegation that co-respondent, James Seem spoke to movant over a cell phone and received her assent to the settlement agreement coupled with the words in the settlement agreement. Therefore, the issue of co-respondent/husband's authority to settle is answered in the affirmative given movant's words and conduct. It should be noted that movant's remaining allegations in the instant motion are without merit.

All stays are vacated, and the petitioner can proceed with the eviction.

Dated: _____________