Greenberg v. New York City Planning Commission

• Decision Date: 02 June 1975
• Citation: 48 A.D.2d 830,368 N.Y.S.2d 554
• Parties: Charles GREENBERG et al., Respondents, v. NEW YORK CITY PLANNING COMMISSION et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 554

368 N.Y.S.2d 554

48 A.D.2d 830

Charles GREENBERG et al., Respondents, v. NEW YORK CITY PLANNING COMMISSION et al., Appellants.

Supreme Court, Appellate Division, Second Department.

June 2, 1975.

W. Bernard Richland, Corp. Counsel, New York City (Murray L. Lewis and L. Kevin Sheridan, New York City, of counsel), for appellants.

Norwick, Raggio & Jaffe, New York City (H. Miles Jaffe, New York City, of counsel), for respondents.

Before GULOTTA, P.J., and RABIN, MUNDER, SHAPIRO and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to enjoin appellants from establishing an off-track betting (OTB) parlor at 75--41 31st Avenue, Jackson Heights, Queens, New York, the appeal is from an order of the Supreme Court, Queens County, dated December 31, 1974, which directed enforcement of a stipulation executed in August, 1974 and, pursuant thereto, granted the relief sought.

Order reversed, on the law, without costs, and proceeding dismissed, without prejudice to the institution by petitioners of a new proceeding, if they be so advised, for the relief sought in the original proceeding, which proceeding terminated upon the execution of a stipulation of discontinuance.

The parties to the original proceeding signed a stipulation in August, 1974, pursuant to CPLR 3217, wherein they agreed that the proceeding was 'discontinued without prejudice to either side upon the understanding that respondent New York City Off-Track Betting Corporation does not intend to and will not open a branch office at 75--41 31st Avenue, Jackson Heights, Queens, New York.' Thereafter, in December, 1974, the instant proceeding to enforce the stipulation was commenced on the ground that OTB had begun construction and intended to open the parlor.

The discontinuance in the original proceeding was clearly without prejudice, and was not an adjudication on the merits (CPLR 3217, subd. (c)). It served to put the parties in Status quo, as though no proceeding had ever been instituted. Thus, there was no longer a proceeding pending in which the court could assert its power (see Gardner v. Board of Educ., Cent. School Dist. No. 1, 28 A.D.2d 616, 279 N.Y.S.2d 794). It was therefore not proper for petitioners in the instant proceeding, among whom are some who were not parties to the stipulation, to attempt to rely upon the stipulation. They are relegated to the institution of a new proceeding, based upon whatever grounds they may have previously urged, plus any which may have subsequently arisen.

RABIN, MUNDER and SHAPIRO, JJ., concur.

HOPKINS, J., dissents and votes to affirm the order, treating the proceeding as transformed into an action, with the following memorandum, in which GULOTTA, P.J., concurs:

The New York City Off-Track Betting Corporation (OTB) on August 2, 1973 entered into a 10-year lease for the occupancy of certain premises in Jackson Heights as a betting parlor. Local opposition sprang up against the opening of the parlor, and in July, 1974, a proceeding was brought against OTB and the other appellants herein under CPLR article 78 for an injunction against the use of the premises for the purpose intended.

That proceeding, by stipulation dated in August, 1974, was discontinued 'without prejudice to either side upon the understanding that respondent New York City Off-Track Betting Corporation does not intend to and will not open a branch office at 75--41 31st Avenue, Jackson Heights, Queens, New York.' The stipulation was confirmed by a letter from OTB's general counsel, reading in part that 'OTB does not intend to and will not open a branch office at 75--41 31st Avenue, Jackson Heights.' Within four or five months of the stipulation OTB ignored it and began preparations to open an office at the address stated. The present proceeding was then commenced to enforce the stipulation.

OTB opposed the enforcement of the stipulation on the principal grounds that the stipulation is not a bar to the right of OTB to open the parlor, because it was without prejudice to either party; that the worsening financial plight of New York City requires new revenues, so that in equity the stipulation should not be enforced; and that OTB's general counsel was without authority to bind it. Special Term granted the petition to enforce the stipulation.

Two issues arise in this appeal--one procedural, the other substantive. The procedural issue is whether a plenary action must be instituted by petitioners to enforce the stipulation. The substantive issue is whether the terms of the stipulation reading 'without prejudice' are enforceable. I see no difficulty in answering the procedural issue, but whether the disposition which is suggested should be followed depends, in my view, on the answer to the substantive question.

I discuss first the procedural issue. The language of the stipulation reads in terms of a compromise of the rights of the parties. The proceeding is discontinued and OTB agrees not to open an office in Jackson Heights. The general rule is that a plenary action to enforce a settlement of a litigation must be brought if the litigation has been terminated; if the litigation remains viable, the stipulation may be enforced in the litigation itself (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435, 445--446, 160 N.E. 778, 781--782; Horodeckyi v. Horodniak, 9 A.D.2d 732, 192 N.Y.S.2d 262). The effect of the general rule has been largely dissipated, however, by CPLR 103, (subd. (c)), which directs that whenever the court has obtained jurisdiction over the parties, no proceeding shall be dismissed solely because it was not brought in the proper form. Here, the court has jurisdiction over the parties; the appellants are the same as in the prior litigation in which the stipulation was made and the petitioners Bacchia and Greenberg were petitioners in the prior proceeding. The proceeding should therefore be transformed into an action, the petition treated as a complaint, and the pleadings of appellants treated as answers. This procedure follows the practice in other cases (cf. Matter of Figari v. New York Tel. Co., 32 A.D.2d 434, 441, 303 N.Y.S.2d 245, 252; Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, 32 A.D.2d 958, 302 N.Y.S.2d 940; Matter of County of Rensselaer v. Capital Dist. Transp. Auth., 42 A.D.2d 445, 349 N.Y.S.2d 20; Verbanic v. Nyquist, 41 A.D.2d 466, 344 N.Y.S.2d 406). As I see it, there is no reason to impose the burden of instituting another action on petitioners when precisely the same parties and the same issues are before us here.

Nonetheless, nothing would be gained in transforming the proceeding into an action, unless the stipulation is susceptible of enforcement. I think that it is.

The stipulation clearly does two things: (1) the proceeding is discontinued without prejudice to either party and (2) OTB agrees that it does not intend to and will not in the future open a branch at the address stated. Appellants construe the first branch as if it cancelled the effect of the second branch. It is true that...