Opinion
11-16-2016
Ricardo LOPEZ, appellant, v. Ramakrishna Reddi MUTTANA, etc., respondent, et al., defendant.
Vincent S. Wong, New York, N.Y., for appellant. Amabile & Erman, P.C., Staten Island, N.Y. (Marc J. Falcone of counsel), for respondent.
Vincent S. Wong, New York, N.Y., for appellant.
Amabile & Erman, P.C., Staten Island, N.Y. (Marc J. Falcone of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Green, J.), dated April 22, 2015, which, inter alia, denied his motion, in effect, to set aside a stipulation of settlement and restore the action to the trial calendar. ORDERED that the order is affirmed, with costs.
After commencing this action to recover damages for medical malpractice, and shortly before the matter was to be tried, the plaintiff, by his former counsel, entered into a stipulation of settlement disposing of the case in exchange for a monetary payment. More than 18 months later, the plaintiff moved, in effect, to set aside the stipulation and restore the action to the trial calendar, claiming that the actions of the trial court and his former counsel had forced him to enter into the stipulation under duress. The Supreme Court denied the motion, and we affirm.
Stipulations of settlement, particularly those entered into in open court pursuant to CPLR 2104, are favored by the courts and will not be cast aside lightly (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Stein v. Stein, 130 A.D.3d 604, 605, 12 N.Y.S.3d 284 ). In order to be relieved of the consequences of a stipulation, a party must establish grounds to invalidate a contract, such as duress, fraud, mistake, or accident (see Hallock v. State of New York, 64 N.Y.2d at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Matter of Melanie K. [Dolores F.], 133 A.D.3d 756, 757, 20 N.Y.S.3d 149 ). “Repudiation of an agreement on the ground that it was procured under duress requires the showing of a wrongful threat and the preclusion of the exercise of free will” (Wujin Nanxiashu Secant Factory v. Ti–Well Intl. Corp., 14 A.D.3d 352, 352, 788 N.Y.S.2d 78 ; see Desantis v. Ariens Co., 17 A.D.3d 311, 792 N.Y.S.2d 599 ). Moreover, an agreement which is the product of duress must be promptly repudiated (see Livathinos v. Vaughan, 121 A.D.3d 485, 994 N.Y.S.2d 109 ; Morad v. Morad, 27 A.D.3d 626, 812 N.Y.S.2d 126 ; 110 Sand Co. v. Nassau Land Improvement Co., 7 A.D.3d 497, 775 N.Y.S.2d 578 ).
Here, the plaintiff failed to allege any unlawful or wrongful threat by his former counsel or by the trial court that could serve as the basis for a claim of duress (see Philips S. Beach,
LLC v. ZC Specialty Ins. Co., 55 A.D.3d 493, 867 N.Y.S.2d 386 ; Board of Mgrs. of Atrium Condominium v. West 79th St. Corp., 19 A.D.3d 241, 798 N.Y.S.2d 8 ; Desantis v. Ariens Co., 17 A.D.3d 311, 792 N.Y.S.2d 599 ; Wujin Nanxiashu Secant Factory v. Ti–Well Intl. Corp., 14 A.D.3d 352, 788 N.Y.S.2d 78 ; Fred Ehrlich, P.C. v. Tullo, 274 A.D.2d 303, 710 N.Y.S.2d 572 ). In any event, even if the plaintiff had adequately alleged duress, his substantial and inexcusable delay in seeking to repudiate the stipulation of settlement warranted the denial of his motion (see e.g. Kaminsky v. Herrick, Feinstein LLP, 59 A.D.3d 1, 870 N.Y.S.2d 1 ; Board of Mgrs. of Atrium Condominium v. West 79th St. Corp., 19 A.D.3d 241, 798 N.Y.S.2d 8 ; Matter of Bouloy v. Peters, 262 A.D.2d 209, 692 N.Y.S.2d 329 ; Matter of Guttenplan, 222 A.D.2d 255, 634 N.Y.S.2d 702 ).
The plaintiff's remaining contention, raised for the first time on appeal, is not properly before this Court (see e.g. Flagstar Bank, FSB v. Titus, 120 A.D.3d 469, 991 N.Y.S.2d 110 ; Infra–Metals Co. v. DK Indus. Servs. Corp., 120 A.D.3d 762, 991 N.Y.S.2d 353 ; Delijani v. Delijani, 100 A.D.3d 951, 954 N.Y.S.2d 479 ; Perez v. Fiore, 78 A.D.3d 1143, 912 N.Y.S.2d 118 ).
Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, to set aside the stipulation of settlement and restore the action to the trial calendar.