Adelstein v. City of New York ( 1992 )

In an action to recover property damages and for injunctive relief to alleviate flooding conditions, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Hyman, J.H.O.), dated July 13, 1990, which dismissed the portion of the complaint which sought equitable relief, with prejudice.

Ordered that the order and judgment is reversed, on the law, with one bill of costs, and the portion of the complaint which sought equitable relief is reinstated.

The background facts of this case are summarized in the decision on the companion appeal, decided herewith (see, Adelstein v City of New York, 188 AD2d 443 [decided herewith]).

Following renewed flooding on June 30, 1984, many of the original plaintiffs and several new ones commenced the instant action to recover for additional property damage and for equitable relief. These plaintiffs settled the damages portion of the action on March 14, 1988. In the order and judgment appealed from, the court dismissed the portion of the complaint which sought equitable relief on that ground that such relief was precluded by a 1979 stipulation terminating the prior action. We reverse.

The court incorrectly interpreted the parties’ 1979 stipulation as foreclosing the plaintiffs from seeking relief based on additional flooding. The 1979 stipulation which terminated the prior action brought in 1976, expressly acknowledged that it was “without prejudice to any legal rights [the plaintiffs] may have as a result of subsequent damages as the result of flooding”. This language was clearly broad enough to preserve the plaintiffs’ right to seek further relief in the event that flooding reoccurred. Thus, the equitable portion of the instant complaint (i.e., the portion that has not already been settled) must be reinstated. Sullivan, J. P., Lawrence, Miller and O’Brien, JJ., concur.