Plaintiff brought this action for partition and sale of real property and an accounting, alleging that he is vested with an undivided one-third ownership interest in the real property known as 34-52 30th Street, Long Island City, in Queens County, New York and holds it as a [*2]tenant in common, with defendants, his brothers, who also are each vested with an undivided one-third ownership interest therein. The subject property is alleged to be improved with a six-unit apartment building.

The note of issue and certificate of readiness was filed by plaintiff's counsel on May 28, 2010, in accordance with the preliminary conference order dated June 15, 2009. By compliance conference order dated February 4, 2010, those parties not yet deposed were directed to appear for a deposition to be held on February 5, 2010. Thereafter, counsel for the parties executed a so-ordered stipulation of settlement dated February 25, 2011, whereby the parties stipulated and agreed, in relevant part, that:

1. ... (a) the partition portion of the Action is settled pursuant to the terms of the attached contract of sale entered between the parties; (b) the accounting cause of action is settled in that Defendants agree to provide all documents within seven days hereof set forth in the February 16, 2011, stipulation and Order,^[FN1] to the extent not hertofore [sic] provided to Plaintiff's counsel, and that unless a further settlement is agreed between the Plaintiff and Defendants resolving the amount due to Plaintiff pursuant to that accounting, the action may be restored to the calendar for a trial with regard to any remuneration due to Plaintiff.

Pursuant to the contract of sale dated September 2010, plaintiff, as "Purchaser," agreed to purchase the 2/3rds (combined) ownership interests of defendants Jack Joseph Miceli and John Vito Miceli, as "Seller," in the subject property for the purchase price $600,000.00. The contract provided that the closing was to take place at 10:00 A.M. on or about April 15, 2011, and conditioned the purchaser's right to assign the contract of sale upon the prior written consent of the seller. The contract also contained a mortgage contingency clause.

The closing did not occur on April 15, 2011 or thereafter. Plaintiff's attorney sent an email dated November 23, 2011 to defendants' counsel asserting that the contract of sale needed to be amended, including by substituting 34-52 30th Street, LLC as the purchaser, because the mortgage loan is "being made to the entity."

Defendants Jack Joseph Miceli and John Vito Miceli assert that plaintiff is a Catholic priest with a limited income. They also assert that it appears based upon the email dated November 23, 2011, plaintiff is unable to obtain financing in his own name to complete the purchase. Defendants Jack Joseph Miceli and John Vito Miceli refuse to consent to the proposed amendment, and indicate they wish to sell the property on the open market. They move, upon the foregoing papers, to vacate the so-ordered stipulation of settlement dated February 25, 2011, restore the action to the court calendar for the purpose of holding a settlement conference, and for leave to conduct more discovery. [*3]

Plaintiff opposes the motion and cross moves to enforce the so-ordered stipulation dated February 25, 2011 by requiring the parties to close the transaction on a date certain, for an award of damages, costs and attorneys' fees and sanctions, or in the alternative, to direct the deposition of each defendant on a date certain, followed by a trial on all issues. Plaintiff asserts that he never assigned the contract of sale to 34-52 30th Street, LLC. He also asserts that defendants have wrongfully delayed the closing by refusing to timely produce records required by lenders in connection with loan applications, and refused to close on various dates suggested by his attorney. Plaintiff further asserts that he was ready, willing, and able to close on those dates and has suffered damages by virtue of defendants' dilatory conduct.

The Appellate Division, Second Judicial Department, in Freight Brokers Global Services, Inc. v Molfetta, 90 AD3d 828 [2011], in pertinent part, stated:

"Stipulations of settlement are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel" (Kelley v Chavez, 33 AD3d 590, 591 [2006] [citations to other cases omitted] A party seeking to set aside such a stipulation will be granted such relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake [citations omitted].

Id. at 828.

Defendants have failed to demonstrate good cause to set aside the parties' so-ordered stipulation of settlement dated February 25, 2011. They make no claim that they were unaware plaintiff was a Catholic priest with limited income prior to their entry into the stipulation. Furthermore, although plaintiff requested a modification of the contract, so, in effect, to assign his rights and obligations under the contract to 34-52 30th Street, LLC, defendants make no showing that plaintiff entered into an assignment without their prior written consent. In addition, the contract of sale deems any assignment by the purchaser of the contract without the seller's prior written consent to be void (see paragraph 26 of the contract). Thus, an assignment without defendants' prior written consent would not have vitiated the contract and does not provide a reason to set aside the so-ordered stipulation. That branch of the motion by defendants to vacate the so-ordered stipulation dated February 25, 2011 is denied.

That branch of the motion by defendants to restore the action to the court's calendar is granted, and that branch of the motion by plaintiff to enforce the "settlement" of the action by requiring the parties to close on the purchase of the property on a date certain is denied. The so-ordered stipulation of settlement dated February 25, 2011 provides that "[e]ither party may restore this case to the trial calendar in the event that title does not transfer pursuant to the contract of sale by April 20, 2011," and "[b]oth sides agree to consent to the matter being returned to the trial calendar by this stipulation."

That branch of the motion by defendants for leave to conduct further discovery is denied. [*4]Defendants have failed to demonstrate a need for "further" discovery on their part.

That branch of the cross motion by plaintiff for an award of damages and attorneys' fees and to impose sanctions is denied.

That alternative branch of the cross motion by plaintiff to direct defendants to appear for a deposition on a date certain and a trial on all issues within 30 days thereafter is granted to the extent the parties are direct to appear for a conference in this Part, at the courthouse at 25-10 Court Square, Room 140, Long Island City, New York on Wednesday, July 18, 2012, at 11:30 A.M.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

June 15, 2012