Opinion
2002-1426 Q C.
Decided October 2, 2003.
Appeal by landlord from an order of the Civil Court, Queens County (U. Leverett, J.), dated July 29, 2002, which granted tenant's motion dismissing the nonpayment proceeding without prejudice to landlord's right to commence a plenary action to recover the unpaid rent.
Order unanimously reversed without costs, tenant's motion to dismiss the petition denied and petition reinstated.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
"Stipulations of settlement are essentially contracts and will be construed in accordance with contract principles and the parties' intent" ( Serna v. Pergament Distribs., 182 AD2d 985, 986). Whether a written agreement is ambiguous is a question of law to be resolved by the court ( see Van Wagner Adv. Corp. v. S M Enters., 67 NY2d 186, 191). Contracts should be enforced in accordance with their terms and "extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear. and unambiguous upon its face" ( W.W.W. Assocs. v. Giancontieri, 77 NY2d 157, 162-163 quoting Intercontinental Planning v. Daystrom, Inc., 24 NY2d 372, 379).
The parties entered into a stipulation settling a prior nonpayment proceeding which provided that tenant claimed she paid rent through April 30, 2002 and landlord claimed that additional rent for that period of time was still due. The stipulation stated that appellant could "start any proceeding for these sums and respondent reserves her defenses to same." Contrary to tenant's contention, although a prior draft of the stipulation provided that landlord could only commence a new nonpayment proceeding, the fact that it was revised to permit the commencement of "any proceeding," does not demonstrate an ambiguity with respect to landlord's right to commence the instant nonpayment proceeding. Indeed, the draft of the stipulation and the version of the stipulation which the parties executed unambiguously permit the commencement of the instant nonpayment proceeding ( see W.W.W. Assocs., 77 NY2d at 162-163; Sharp v. Stavisky, 221 AD2d 216, 217). Thus, tenant may not offer extrinsic and parol evidence in an attempt to create an ambiguity ( see W.W.W. Assocs., 77 NY2d at 163).