Citation Numbers: 130 Misc. 2d 1086
Judges: Saxe
Filed Date: 2/6/1986
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
In this action which seeks to enforce the terms of a settlement agreement, plaintiff moves inter alia, for summary judgment on its complaint; for an order requiring defendant to post a bond in the amount of at least $48,000 to secure the payment of any judgment; for an order striking defendant’s verified answer, amended answer and two affirmative defenses; for an order denying defendant disclosure; and for an award of attorneys’ fees. Defendant cross-moves pursuant to CPLR 8501 (a) to stay this action until plaintiff, a foreign corporation, files an undertaking in the amount of $500. Defendant also seeks leave to serve an amended answer. (CPLR 3025 [b].)
The settlement agreement was executed February 6, 1985 and its terms are clear: "all claims of any nature by Cie Noga S. A. (Noga) against Heather Financial Corporation (Heather) shall be finally settled upon payment by Heather to Noga of the sum of (U. S.) $40,000 (the settlement sum).” The agree
The defendant contends that it was its understanding that the settlement was never intended by either party to cancel either of the parties’ full rights or defenses to the underlying contract dispute. Based on this reasoning the defendant seeks leave to serve an amended answer and interpose counterclaims against the plaintiff for fraud and misrepresentation on the underlying contract dispute which the settlement agreement purported to settle.
The defendant’s attempts to alter or vary the unambiguous and clear terms of the settlement are barred by the parol evidence rule. (See, Chimart Assoc. v Paul, 66 NY2d 570, 572-573.) There, the court, quoting from its decision in Teitelbaum Holdings v Gold (48 NY2d 51, 56), stated that: " '[interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument.’ ”
Such is the case here. Defendant’s position that it did not understand that the settlement agreement was intended to resolve the underlying dispute is not credible. If not that, what else is the purpose of a settlement? The settlement agreement by its terms was designed to settle all claims between the parties.
Plaintiff’s motion for summary judgment on its complaint and to strike defendant’s answer is therefore granted and defendant’s cross motion to amend its answer is denied. Plaintiff’s request for an order requiring defendant to post a bond is denied as is its request for an award of attorneys’ fees. Plaintiff’s motion to strike defendant’s demands for disclosure is denied as moot.
Finally, defendant cross-moves for an order, pursuant to CPLR 8501 (a), to stay this action until plaintiff, a foreign corporation, not licensed to transact business in this State, files an undertaking of not less than $500.
Defendant points out that relief under CPLR 8501 (a) is mandatory, not discretionary. That statute provides that
The plaintiff opposes the cross motion contending that since the intent of CPLR 8501 is to protect New York residents from frivolous lawsuits commenced by nonresidents, that purpose would not be served here because the plaintiff’s lawsuit is not frivolous. That purpose is stated in McLaughlin, Supplementary Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, 1986 Pocket Part, CPLR C8501:l, p 29): "By directing a nonresident plaintiff to post a bond for costs, the defendant is protected from frivolous suits, and is assured that, if he eventually wins the action, the defendant will be able to recover costs from the nonresident plaintiff.”
Nevertheless, CPLR 8501 (a) is applicable in all cases, prophylactically, without regard to a plaintiff’s likelihood of ultimate success or failure in the matter. (See, Grindle v Westbury Food Mkt., 135 NYS2d 21 [Sup Ct, Nassau County 1954].) Therefore, the plaintiff’s argument that its suit is not frivolous will not defeat a defendant’s entitlement to an order under CPLR 8501 (a).
Plaintiff next argues that the defendant is not entitled to the requested relief based on the defendant’s delay. This ground however has been repeatedly rejected. The rule is that there is " 'no time limitation placed upon the defendants’ right to seek security’ ” (Green v Roosevelt Hotel, 47 Misc 2d 177, 178 [Sup Ct, NY County 1965]; Siegel, NY Prac §414 [costs]) and a defendant’s motion for costs may be made and must be granted "at any stage of the action”. (Gilbert v 503-507 W. 177th St. Corp., 186 Misc 78 [Sup Ct, NY County 1945]; Snyder v Griswold, 140 Misc 82 [Sup Ct, Chautauqua County 1931].) Nor is laches available as a defense to a CPLR 8501 (a) motion. (Barrow v Union Free School Dist. No. 13, 72 Misc 2d 164 [Dist Ct, Suffolk County 1972].)
This section is strictly applied. Thus, in Manente v Sorecon Corp. (22 AD2d 954 [2d Dept 1964]), a plaintiff was ordered to furnish security for costs after winning two prior jury verdicts which were subsequently reversed on appeal and a third trial was ordered.
Here, plaintiff has moved for summary judgment on its entire complaint and I have granted it the requested relief. To stay plaintiffs motion, pending its filing of security for costs, would serve no purpose except to generate additional unnecessary motion practice and delay plaintiffs right to a judgment which it is entitled to. Thus, any suggestion here that, by virtue of defendant’s cross motion, I am precluded from even considering the merits of plaintiffs motion for summary judg
Since this action is now virtually at a close and plaintiff has been awarded judgment in its favor, defendant’s cross motion pursuant to CPLR 8501 (a) is denied. If defendant decides to pursue an appeal in this matter, it may bring a new motion for security for costs and the Justice to whom that motion is submitted will then need to decide whether a defendant, on appeal, has a right to demand security for costs from a nonresident plaintiff where the plaintiff was the successful party below.