| Leishman v Schulman |
| 2021 NY Slip Op 00090 |
| Decided on January 07, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: January 07, 2021
Before: Manzanet-Daniels, J.P., Kapnick, Moulton, González, Scarpulla, JJ.
Index No. 154090/19 Appeal No. 12795 Case No. 2020-01602
v
Michael Schulman, Defendant-Respondent.
Smith Carroad Levy Wan & Parikh, P.C., Commack (Kevin M. Knab of counsel), for appellant.
Kasowitz Benson Torres LLP, New York (Alana S. Klein of counsel), for respondent.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 13, 2020, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
The court properly granted defendant's motion to dismiss the complaint seeking to enforce a sister-state-judgment based on its finding that the December 22, 2016 letter agreement was a settlement agreement, drafted by plaintiff's then counsel, which provided an affirmative defense of payment under CPLR 3211(a)(5). Contrary to plaintiff's argument, the court did not err in finding that defendant's $40,000 payment pursuant to the terms of the settlement agreement satisfied any outstanding obligation he owed to plaintiff under the judgment. The settlement agreement did not include any provision holding defendant jointly and severally liable for the obligation owed by a co-debtor under that agreement, and the court properly declined to consider parol evidence that plaintiff argues suggests otherwise, finding that, if that term had been intended, it would have been included by plaintiff's then counsel who drafted the agreement (see Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d 1, 6 [1st Dept 2012]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 7, 2021