| Moskowitz v Barocco Foods, Inc. |
| 2006 NY Slip Op 50962(U) [12 Misc 3d 128(A)] |
| Decided on May 22, 2006 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff, as limited by his brief, appeals from that portion of an order of the Civil Court, New York County (Lucy Billings, J.), entered October 25, 2004, which granted the motion of defendants Barocco Foods, Inc. and Barocco Greenwich, Inc. to dismiss the complaint as against them.
PER CURIAM:
Order (Lucy Billings, J.), entered October 25, 2004, modified to deny the motion to dismiss of defendants Barocco Foods, Inc. and Barocco Greenwich, Inc., and to reinstate the complaint as against them, and as modified, affirmed, with $10 costs.
The dismissal of the complaint as against the Barocco defendants based on documentary evidence pursuant to CPLR 3211(a)(1) was unwarranted in the absence of an explicit provision definitely disposing of plaintiff's claim in the stipulation of settlement executed by the parties in the underlying commercial nonpayment proceeding (see Bronxville Knolls, Inc. v. Webster Town Center Partnership, 221 AD2d 248 [1995]). Since the stipulation by its terms did not preclude plaintiff from seeking the acknowledged rent arrears in the event of defendants' failure to pay as agreed, plaintiff was not foreclosed from seeking the rent arrears in this plenary action (see Barzack Realty Co. v. Joseph Legatti & Son, Inc., 114 Misc 2d 245 [1982]).
This constitutes the decision and order of the court.
Decision Date: May 22, 2006