Opinion
2005-1333 NC.
Decided June 28, 2006.
Appeal from an order of the District Court of Nassau County, Third District (Alfred D. Cooper, Sr., J.), dated April 12, 2005. The order denied a motion by landlord to compel tenant to, inter alia, execute a more formal stipulation of settlement and limited releases to tenant's guarantors, as agreed to in a so-ordered preliminary stipulation, and sua sponte vacated the so-ordered preliminary stipulation and set the matter down for trial.
On the court's own motion, the notice of appeal from so much of the order as sua sponte vacated the so-ordered preliminary stipulation and set the matter down for trial is treated as an application for leave to appeal from that portion of the order and leave to appeal is granted ( see UDCA 1702 [c]).
Order modified by striking the provision which sua sponte vacated the so-ordered preliminary stipulation and set the matter down for trial; as so modified, affirmed without costs.
PRESENT:: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
In this commercial holdover proceeding, the petition alleges that landlord, a sublessor, terminated tenant's sublease on the ground that tenant failed to pay October, November and December 2004 rent, causing landlord to make said payments to the overlandlord. After advising the court that they had agreed to settle the matter, the parties entered into a so-ordered preliminary stipulation providing that, upon the execution of a more formal stipulation, tenant would pay landlord $5,800. The "parameters" of the more formal stipulation were stated to be that tenant would surrender the sublease and vacate the premises; that the parties would execute limited releases regarding future claims under the sublease; and that tenant's guarantors would be released. When landlord forwarded the more formal stipulation to tenant, tenant refused to sign it. Thereupon, landlord moved in the District Court to compel tenant to execute the proposed stipulation and releases, and for related relief. The court, finding that the so-ordered stipulation was the product of a mutual mistake because it did not provide for the date or dates of performance, denied landlord's motion, sua sponte vacated the so-ordered stipulation and set the matter down for trial.
In our view, the relief sought of compelling tenant to execute the more formal stipulation and the releases is equitable and injunctive in nature, and thus beyond the jurisdiction of the District Court to grant (UDCA 209 [b]; North Waterside Redevelopment Co. v. Febbraro, 256 AD2d 261; 7 Highland Mgt. Corp. v. McCray, 9 Misc 3d 129 [A], 2005 NY Slip Op 51530[U] [App Term, 9th 10th Jud Dists]). Therefore, we sustain the court's denial of landlord's motion to enforce the stipulation on the ground that the court lacked the jurisdiction to grant the relief sought. In so holding, we do not pass on the ultimate issue of whether the so-ordered stipulation is enforceable. We note, however, that, generally, when a contract does not specify a time of performance, a reasonable time is implied ( see Savasta v. 470 Newport Assocs., 82 NY2d 763, 765; Haines v. City of New York, 41 NY2d 769, 772; Teramo Co. v. O'Brien-Sheipe Funeral Home, 283 AD2d 635, 636).
The court's sua sponte vacatur of the stipulation was error since landlord did not seek that relief ( see Binensztok v. Bello, 285 AD2d 619, 621).
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.