Thomas-Burton v. Thomas

• Decision Date: 07 December 1992
• Docket Number: R,THOMAS-BURTO
• Citation: 188 A.D.2d 459,590 N.Y.S.2d 908
• Parties: Doloresespondent, v. William THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 908

590 N.Y.S.2d 908

188 A.D.2d 459

Dolores THOMAS-BURTON, Respondent, v. William THOMAS, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1992.

Richard Borda, Bay Shore (Michael Kennedy, of counsel), for appellant.

Bernard L. Burton, Melville, for respondent.

Before BRACKEN, J.P., and SULLIVAN, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to enforce a stipulation, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Friedenberg, J.), dated October 29, 1990, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $5,500.

ORDERED that the judgment is affirmed, with costs.

On January 21, 1987, the parties entered into a stipulation on the record, which settled an action the plaintiff had brought against the defendant in November 1985 for partition of their former marital home in Stony Brook, where the plaintiff had continued to reside. The stipulation provided, inter alia, that upon the eventual sale of the property in question, any broker's commission and mortgage money owed would be deducted "off the top" of the closing proceeds before the distribution of the net proceeds, that each party would pay his or her attorney's fees separately, and, of particular importance to the present appeal, that the plaintiff would be paid "the sum of $11,000 directly to her from the proceeds of the closing for reimbursement of expenses that she ha[d] provided for the [previous] six years regarding repairs and other necessary maintenance expenses". Subsequently, at the closing of title upon the sale of the property in August 1987, the defendant threatened not to endorse the buyer's check unless the plaintiff accepted only $5,500 from the proceeds. She reluctantly agreed, because as the defendant was aware, this money was needed to consummate the purchase of a new residence by the plaintiff. Shortly thereafter, the plaintiff commenced this action to recover the remaining $5,500 the defendant allegedly still owed her under the terms of the stipulation.

At trial, the plaintiff testified that she had expended $21,000 in maintenance and repair costs on the property since the parties' marriage was dissolved in 1980, and that she believed that the $11,000 figure the parties had agreed upon was entirely the defendant's obligation. In contrast, the defendant and the attorney who had represented him at the time the stipulation was made both testified that they had interpreted the stipulation as providing that the plaintiff would receive only $5,500 since the parties were to share the maintenance and repair costs that the plaintiff had incurred. Neither party, however, had objected to the language used by the plaintiff's attorney upon reading the stipulation into the record. The defendant's former attorney also...