Opinion
2014-05744, Index No. 5216/10.
03-29-2017
Angela PIETER, appellant, v. Nichole M. POLIN, et al., defendants-respondents; Pulvers, Pulvers & Thompson, LLP, nonparty-respondent.
Ilana Vale, New York, NY, for appellant. Keller, O'Reilly & Watson, P.C., Woodbury, NY (Scott C. Watson and Patrick J. Engle of counsel), for defendants-respondents. Pulvers, Pulvers, Thompson & Friedman, LLP, named herein as Pulvers, Pulvers & Thompson, LLP, New York, NY (Konstantin Burshteyn of counsel), for nonparty-respondent.
Ilana Vale, New York, NY, for appellant.
Keller, O'Reilly & Watson, P.C., Woodbury, NY (Scott C. Watson and Patrick J. Engle of counsel), for defendants-respondents.
Pulvers, Pulvers, Thompson & Friedman, LLP, named herein as Pulvers, Pulvers & Thompson, LLP, New York, NY (Konstantin Burshteyn of counsel), for nonparty-respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX and JOSEPH J. MALTESE, JJ.
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered June 4, 2014, as, after a hearing, denied her motion to set aside a stipulation of discontinuance dated May 23, 2012, and granted that branch of the cross motion of the nonparty-respondent which was for an award of costs.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants-respondents and the nonparty-respondent appearing separately and filing separate briefs.
"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; see Lopez v. Muttana, 144 A.D.3d 871, 871, 41 N.Y.S.3d 113 ; Yan Ping Liang v. Wei Xuan Gao, 118 A.D.3d 696, 697, 986 N.Y.S.2d 857 ; Forcelli v. Gelco Corp., 109 A.D.3d 244, 247–248, 972 N.Y.S.2d 570 ; Campione v. Alberti, 98 A.D.3d 706, 706, 950 N.Y.S.2d 392 ). The party seeking to vacate or set aside a stipulation of settlement has the burden of establishing good cause sufficient to invalidatea contract, such as that the stipulation was the result of duress, fraud, or overreaching, or that the terms of the stipulation were unconscionable, in order to be relieved from the consequences of the stipulation (see Lopez v. Muttana, 144 A.D.3d at 871, 41 N.Y.S.3d 113 ; Matter of Melanie K. [Dolores F.], 133 A.D.3d 756, 757, 20 N.Y.S.3d 149 ; Yan Ping Liang v. Wei Xuan Gao, 118 A.D.3d at 697, 986 N.Y.S.2d 857 ; Campione v. Alberti, 98 A.D.3d at 707, 950 N.Y.S.2d 392 ). Unsubstantiated or conclusory allegations are insufficient (see HSBC Bank USA, N.A. v. Wielgus, 131 A.D.3d 510, 511, 15 N.Y.S.3d 170 ; Rogers v. Malik, 126 A.D.3d 874, 875, 5 N.Y.S.3d 525 ). Here, contrary to the plaintiff's contention, the Supreme Court properly determined that she failed to demonstrate good cause to vacate the stipulation discontinuing the action against the defendant Edmond Herrold (see Lopez v. Muttana, 144 A.D.3d at 871, 41 N.Y.S.3d 113 ; Yan Ping Liang v. Wei Xuan Gao, 118 A.D.3d at 697, 986 N.Y.S.2d 857 ; Campione v. Alberti, 98 A.D.3d at 707, 950 N.Y.S.2d 392 ). In any event, even if the plaintiff had adequately established her claim that the stipulation was procured by fraud, her substantial and inexcusable delay in seeking to vacate the stipulation warranted denial of the motion (see Lopez v. Muttana, 144 A.D.3d at 871, 41 N.Y.S.3d 113 ).
The Supreme Court providently exercised its discretion in granting that branch of the cross motion of the nonparty-respondent which was for an award of costs due to the frivolous conduct of the plaintiff's counsel (see Board of Mgrs. of Foundry at Washington Park Condominium v. Foundry Dev. Co., Inc., 142 A.D.3d 1124, 1125, 38 N.Y.S.3d 60 ; Strunk v. New York State Bd. of Elections, 126 A.D.3d 779, 781, 5 N.Y.S.3d 498 ; Matter of Khan–Soleil v.
Rashad, 111 A.D.3d 727, 728, 974 N.Y.S.2d 798 ).