Preview
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
-------------------------------------------------------------------------X
BOARD OF MANAGERS OF VANWYCK GLEN
CONDOMINIUM, THE BOARD OF MANAGERS OF
VAN WYCK MEADOWS CONDOMINIUM. A
Condominium created pursuant to Article 9-B of the
Real Property Law, on behalf of its unit owners,
Index No.: 2017-50017
Plaintiffs,
- against - LIMITED PARTIAL
SETTLEMENT
VANWYCK AT MERRITT PARK HOMEOWNERS AGREEMENT
ASSOCIATION, INC., ANTHONY COSTA AND DICK
HACK,
Defendants.
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VANWYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC.,
Third-Party Plaintiff,
-against-
THE BOARD OF MANAGERS OF VANWYCK
MEADOWS CONDOMINIUM II,
Third-Party Defendant.
-------------------------------------------------------------------------X
WITNESSETH
WHEREAS, the trial of certain limited issues presented in this Action is scheduled to
commence with jury selection at the Supreme Court, Dutchess County on June 27, 2022,
IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the
Plaintiffs, BOARD OF MANAGERS OF VANWYCK GLEN CONDOMINIUM (the "Glen")
and THE BOARD OF MANAGERS OF VANWYCK MEADOWS CONDOMINIUM
("Meadows I") and the Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS
1
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022
ASSOCIATION, INC. (the "HOA"), ANTHONY COSTA ("Costa") AND DICK HACK
("Hack"), as follows:
1. The claims by Meadows I and the Glen sounding in breach of fiduciary duty as
against Costa and Hack set forth in Plaintiffs' Second Cause of Action are discontinued with
prejudice and without costs, fees or disbursements to either party.
2. The funds subject to the Counterclaims by the HOA against Meadows I and the
Glen for the return of funds in the amount of $5718.11 from Meadows I and $5247.60 from the
Glen, alleged by the HOA to have been improperly retained by the Glen and Meadows I,
(hereinafter referred to as the "Reconciliation Funds"), shall be retained by the Glen and
Meadows I pending the disposition of the Appeals of the decision of Judge Acker dated January
18,2021 (NYSCEF Doc. No. 386), and the decision of Judge Hayes dated March 31, 2021
(NYSCEF DO No. 426) (collectively, the "Appeals") currently pending in this action.
3. The Reconciliation Funds will be permanently awarded to the prevailing party in
the pending Appeals. * The "prevailing party" shall be defined as the party which controls the
rights to maintain and repair the Condominium Common Elements based upon the outcome of
the Appeals. In the event of reversal by the Appellate Division and remand to the Supreme Court
for further proceedings to determine who controls the maintenance and repair functions, then, in
that instance, the decision of the trial court or the decision of any subsequent court which
ultimately addresses and resolves the issue will be controlling as to whether Plaintiffs or
Defendants shall be deemed a "prevailing party".
4. The trial regarding (1) the claims of breach of fiduciary duty by the Plaintiffs as
against Costa and Hack, (2) the counterclaim regarding the Reconciliation Funds asserted by the
HOA against the Plaintiffs and (3) any other claims asserted by the parties and not preserved by
2
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022
the Appeals, including Defendants' Second, Third and Fourth Counter Claims which is currently
scheduled for June 27, 2022 before Judge Hayes, is moot in light of this Agreement.
5. All of the claims and arguments addressed in the Appeals are preserved for
resolution before the Appellate Division, Second Department, as are the rights of the parties to
take further appeals of the decision(s) rendered by the Appellate Division, Second Department in
connection with the Appeals, to the extent such right otherwise exists pursuant to the CPLR and
Law of the State of New York.
6. This Agreement shall constitute the entire and sole agreement among the parties
with respect to the subject matter hereof. None of the parties is relying upon any promise,
representation, understanding, undertaking, or agreement, whether oral or in writing, not set forth
in this Agreement, all of which shall be deemed to have been superseded by this Agreement, and
each of the parties expressly disclaims any reliance on any other promise, representation,
understanding, undertaking, or agreement, whether oral or in writing, with respect to any of the
subject matter of this Agreement.
7. If for any reason any provision of this Agreement is determined to be invalid or
unenforceable, that provision shall be deemed modified to whatever extent necessary to render it
enforceable, and if a court declines to so modify the provision, then the remaining provisions of
this Agreement nevertheless shall be construed, performed, and enforced as if the invalidated or
unenforceable provision had not been included in the text of this Agreement.
8. The drafting and negotiation of this Agreement have been participated in by each of
the parties and their respective counsel, and for all purposes this Agreement shall be deemed to
have been drafted jointly by the parties. No ambiguity shall be resolved against any of the parties
based upon authorship.
3
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022
9. Nothing contained in this Agreement nor the fact that the parties signed it, shall be
considered or deemed to be an admission of any wrongdoing or any violation or breach of any
federal, state or municipal law, statute, ordinance, rule, regulation or order. This Agreement is
not intended, and shall not be construed, as evidence of any wrongdoing or liability on the part of
any party.
10. THIS PARAGRAPH DELETED INTENTIONALLY
11. This Agreement may be executed in counterpatts, each of which shall be deemed an
original, and all counterparts so executed shall constitute one agreement binding on all of the
parties hereto. Execution of this Agreement via facsimile signatures and/or delive1y by electronic
mail shall be deemed the same as original signatures.
12. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted assigns, representatives and heirs.
Dated: New York, New York
March ~ . 2022
HANDEL&CA
By: - - - - - t - - ; ; ' - - - - - -- By:
Anthony arlini, Jr.
- -
Jo
- -- -r- - - - -- - -
Attorneys for Plaintiffs Defendants and
1984 Hackensack Road Plaintiff
Poughkeepsie, New York 12603 nd Street, 171h Floor
(845) 454-2221 , New York 10017
-2900
4
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022
& E l: LP
MlLBER, MARKIS, PLOUSADIS MIRANDA . SAMI3URSKY, SLONE.
SKLARTN. VERVE TOTOS, LLP
By
Vin
v&
cnt amncho
Allomqs.for Van
Esq.
Wrck Mc 1dows
By: -- - - - - - - - - - -
Richard S. Sklarin, Esq.
A lfomeys for 711ird-l'arty IJcfendant
'011do111ini11111 l 011 the Co1111tercluim Vc111 W)'C!, Meadows Condo111i11i11111 II
100 Manha ttnnvillc Road. Suite 4E20 570 Taxtcr Road, Suite 561
Purchase, New York I0577 Elmsford, New York I0523
(91 4) 6, I -
700 (9 14) 345-6510
OBER 1A Y ~R. REf3MA . MAXWELL
& HIPPEL, LLC
,/
By: ---"j---+"----t--~---
D ie sq .
A ttorneysfor l'/m11ti{(
k (ilen ( ·011c/0111i11i11111
I ' 111 II )·
on the Co1mtcrclai111s
9 East 40'h trcct, 4th Floor
'cw Y rk. 't!w 'i ork10016
(-1 2)922-91, 2
s
Preview
FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------------------------------------------------------X BOARD OF MANAGERS OF VANWYCK GLEN CONDOMINIUM, THE BOARD OF MANAGERS OF VAN WYCK MEADOWS CONDOMINIUM. A Condominium created pursuant to Article 9-B of the Real Property Law, on behalf of its unit owners, Index No.: 2017-50017 Plaintiffs, - against - LIMITED PARTIAL SETTLEMENT VANWYCK AT MERRITT PARK HOMEOWNERS AGREEMENT ASSOCIATION, INC., ANTHONY COSTA AND DICK HACK, Defendants. -------------------------------------------------------------------------X VANWYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., Third-Party Plaintiff, -against- THE BOARD OF MANAGERS OF VANWYCK MEADOWS CONDOMINIUM II, Third-Party Defendant. -------------------------------------------------------------------------X WITNESSETH WHEREAS, the trial of certain limited issues presented in this Action is scheduled to commence with jury selection at the Supreme Court, Dutchess County on June 27, 2022, IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the Plaintiffs, BOARD OF MANAGERS OF VANWYCK GLEN CONDOMINIUM (the "Glen") and THE BOARD OF MANAGERS OF VANWYCK MEADOWS CONDOMINIUM ("Meadows I") and the Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS 1 FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022 ASSOCIATION, INC. (the "HOA"), ANTHONY COSTA ("Costa") AND DICK HACK ("Hack"), as follows: 1. The claims by Meadows I and the Glen sounding in breach of fiduciary duty as against Costa and Hack set forth in Plaintiffs' Second Cause of Action are discontinued with prejudice and without costs, fees or disbursements to either party. 2. The funds subject to the Counterclaims by the HOA against Meadows I and the Glen for the return of funds in the amount of $5718.11 from Meadows I and $5247.60 from the Glen, alleged by the HOA to have been improperly retained by the Glen and Meadows I, (hereinafter referred to as the "Reconciliation Funds"), shall be retained by the Glen and Meadows I pending the disposition of the Appeals of the decision of Judge Acker dated January 18,2021 (NYSCEF Doc. No. 386), and the decision of Judge Hayes dated March 31, 2021 (NYSCEF DO No. 426) (collectively, the "Appeals") currently pending in this action. 3. The Reconciliation Funds will be permanently awarded to the prevailing party in the pending Appeals. * The "prevailing party" shall be defined as the party which controls the rights to maintain and repair the Condominium Common Elements based upon the outcome of the Appeals. In the event of reversal by the Appellate Division and remand to the Supreme Court for further proceedings to determine who controls the maintenance and repair functions, then, in that instance, the decision of the trial court or the decision of any subsequent court which ultimately addresses and resolves the issue will be controlling as to whether Plaintiffs or Defendants shall be deemed a "prevailing party". 4. The trial regarding (1) the claims of breach of fiduciary duty by the Plaintiffs as against Costa and Hack, (2) the counterclaim regarding the Reconciliation Funds asserted by the HOA against the Plaintiffs and (3) any other claims asserted by the parties and not preserved by 2 FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022 the Appeals, including Defendants' Second, Third and Fourth Counter Claims which is currently scheduled for June 27, 2022 before Judge Hayes, is moot in light of this Agreement. 5. All of the claims and arguments addressed in the Appeals are preserved for resolution before the Appellate Division, Second Department, as are the rights of the parties to take further appeals of the decision(s) rendered by the Appellate Division, Second Department in connection with the Appeals, to the extent such right otherwise exists pursuant to the CPLR and Law of the State of New York. 6. This Agreement shall constitute the entire and sole agreement among the parties with respect to the subject matter hereof. None of the parties is relying upon any promise, representation, understanding, undertaking, or agreement, whether oral or in writing, not set forth in this Agreement, all of which shall be deemed to have been superseded by this Agreement, and each of the parties expressly disclaims any reliance on any other promise, representation, understanding, undertaking, or agreement, whether oral or in writing, with respect to any of the subject matter of this Agreement. 7. If for any reason any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be deemed modified to whatever extent necessary to render it enforceable, and if a court declines to so modify the provision, then the remaining provisions of this Agreement nevertheless shall be construed, performed, and enforced as if the invalidated or unenforceable provision had not been included in the text of this Agreement. 8. The drafting and negotiation of this Agreement have been participated in by each of the parties and their respective counsel, and for all purposes this Agreement shall be deemed to have been drafted jointly by the parties. No ambiguity shall be resolved against any of the parties based upon authorship. 3 FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022 9. Nothing contained in this Agreement nor the fact that the parties signed it, shall be considered or deemed to be an admission of any wrongdoing or any violation or breach of any federal, state or municipal law, statute, ordinance, rule, regulation or order. This Agreement is not intended, and shall not be construed, as evidence of any wrongdoing or liability on the part of any party. 10. THIS PARAGRAPH DELETED INTENTIONALLY 11. This Agreement may be executed in counterpatts, each of which shall be deemed an original, and all counterparts so executed shall constitute one agreement binding on all of the parties hereto. Execution of this Agreement via facsimile signatures and/or delive1y by electronic mail shall be deemed the same as original signatures. 12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns, representatives and heirs. Dated: New York, New York March ~ . 2022 HANDEL&CA By: - - - - - t - - ; ; ' - - - - - -- By: Anthony arlini, Jr. - - Jo - -- -r- - - - -- - - Attorneys for Plaintiffs Defendants and 1984 Hackensack Road Plaintiff Poughkeepsie, New York 12603 nd Street, 171h Floor (845) 454-2221 , New York 10017 -2900 4 FILED: DUTCHESS COUNTY CLERK 04/13/2022 11:16 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 453 RECEIVED NYSCEF: 04/14/2022 & E l: LP MlLBER, MARKIS, PLOUSADIS MIRANDA . SAMI3URSKY, SLONE. SKLARTN. VERVE TOTOS, LLP By Vin v& cnt amncho Allomqs.for Van Esq. Wrck Mc 1dows By: -- - - - - - - - - - - Richard S. Sklarin, Esq. A lfomeys for 711ird-l'arty IJcfendant '011do111ini11111 l 011 the Co1111tercluim Vc111 W)'C!, Meadows Condo111i11i11111 II 100 Manha ttnnvillc Road. Suite 4E20 570 Taxtcr Road, Suite 561 Purchase, New York I0577 Elmsford, New York I0523 (91 4) 6, I - 700 (9 14) 345-6510 OBER 1A Y ~R. REf3MA . MAXWELL & HIPPEL, LLC ,/ By: ---"j---+"----t--~--- D ie sq . A ttorneysfor l'/m11ti{( k (ilen ( ·011c/0111i11i11111 I ' 111 II )· on the Co1mtcrclai111s 9 East 40'h trcct, 4th Floor 'cw Y rk. 't!w 'i ork10016 (-1 2)922-91, 2 s