Tak Chio Cheong v. Jinghong Zhu

Tak Chio Cheong v Jinghong Zhu (2016 NY Slip Op 02593)

Tak Chio Cheong v Jinghong Zhu

2016 NY Slip Op 02593

Decided on April 5, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 5, 2016
Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.

744N 305549/08

[*1]Tak Chio Cheong, Plaintiff-Appellant, —

v

Jinghong Zhu, Defendant—Respondent.

Law Offices of Jim Li, Flushing (Aaron Lebenger of counsel), for appellant.

The Law Offices of Perry Ian Tischler P.C., Bayside (Perry Tischler of counsel), for respondent.

Order, Supreme Court, New York County (Joseph P. Burke, Special Referee), entered December 12, 2014, which, after a hearing, among other things, granted defendant wife's motion for 50% of the proceeds of the sale of the parties' house, unanimously affirmed, without costs.

The unambiguous language of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce, provided that if they are unable to agree on the sale price of the house, they "shall seek an appraisal from Silver Bay [appraisal company] at equal cost, and the appraised value shall be the price at which the [h]ouse is to be sold." Plaintiff's failure to obtain an appraisal from Silver Bay, as required by the stipulation, bars his claim that defendant breached the stipulation by failing to cooperate in connection with the sale of the house (see generally Matter of Gravlin v Ruppert, 98 NY2d 1, 5 [2002]). The doctrine of "substantial performance" may not be used to excuse plaintiff's failure to perform an express condition precedent in the stipulation (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 693 [1995]). Nor is plaintiff's impossibility argument availing, since the parties could have guarded against the foreseeable possibility that Silver Bay would no longer be performing appraisals (see 143-145 Madison Ave. LLC v Tranel, Inc., 74 AD3d 473, 474 [1st Dept 2010]). In any event, plaintiff's noncooperation claim is belied by the record, which shows that defendant, among other things, agreed to plaintiff's offer to buy-out her interest and never objected to the showing of the property. Defendant's disagreement as to the sale price of the house was contemplated by the stipulation, and should not be regarded as noncooperation.

Plaintiff's claim for unjust enrichment is barred, given the parties' stipulation of [*2]settlement (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK