Opinion
January 17, 1995
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
We agree with the trial court's interpretation of the relevant provisions of the parties' stipulation of settlement and with the trial court's conclusion that the plaintiff's failure to timely vacate the premises relieved the defendant of its financial obligations under the stipulation. Thus, the trial court properly dismissed the first cause of action in which the plaintiff sought to recover damages pursuant to the terms of the stipulation of settlement.
Since the plaintiff did not suffer any prejudice as a result thereof, the trial court did not improvidently exercise its discretion by conforming the pleadings to the proof in order to permit the defendant to recover for the fair use and occupancy of the premises during the four-month period that the plaintiff failed to vacate the premises (see, CPLR 3025 [c]; Brook-Hattan Utils. v. 893 Constr. Corp., 180 A.D.2d 660).
We have considered the plaintiff's remaining contention and find it to be without merit. Miller, J.P., Joy, Krausman and Goldstein, JJ., concur.