Thanawala v. Allstate Ins. Co.

Full title: Shirish K. Thanawala MD a/a/o Roger Archer, Plaintiff-Appellant, v…

Court: Supreme Court of New York

Date published: Dec 20, 2021

2021 N.Y. Slip Op. 51217 (N.Y. Sup. Ct. 2021)

Opinion

570098/21

12-20-2021

Shirish K. Thanawala MD a/a/o Roger Archer, Plaintiff-Appellant, v. Allstate Insurance Company, Defendant-Respondent.

PER CURIAM.

Unpublished Opinion

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Matthew P. Raso, J.), dated May 4, 2021, which granted defendant's motion to vacate a stipulation of settlement.

PRESENT: Edmead, P.J., Hagler, Silvera, JJ.

PER CURIAM.

Order (Matthew P. Raso, J.), dated May 4, 2021, affirmed, with $10 costs.

We find no abuse of discretion in the grant of defendant's motion to vacate the out-of-court stipulation of settlement. Theda Browdy, Esq., of the Law Offices of Karen Lawrence, the attorney that signed the stipulation, had neither actual nor apparent authority to enter into the stipulation on behalf of defendant (see Hallock v State of New York, 64 N.Y.2d 224 [1984]). The record supports the conclusion that, prior to the execution of the stipulation on June 29, 2017, the Lawrence firm had already been substituted by the Law Office of John Trop by order of the Supreme Court, Bronx County (Suarez, J.), dated July 9, 2014. Further, the email correspondence among the various law firms involved shows that plaintiff's counsel was aware of the substitution prior to the execution of the stipulation, and was expressly informed of defendant's intention to litigate the case at trial.

Civil Court possesses discretionary power to relieve the parties from the consequences of a stipulation (see Teitelbaum Holdings v Gold, 48 N.Y.2d 51, 54 [1979]), particularly where, as here, "it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it" (1420 Concourse Corp. v Cruz, 135 A.D.2d 371, 373 [1987], appeal dismissed 73 N.Y.3d 868 [1989], citing Matter of Frutiger, 29 N.Y.2d 143, 150 [1971]). CPLR 5015, cited by defendant in its motion to vacate, applies only where, unlike the case here, the stipulation is converted to an order or judgment. However, defendant's reliance upon CPLR 5015 caused no prejudice as plaintiff was clearly aware of the relief sought (see CPLR 2001; Moon v Tupler, 110 A.D.3d 486, 487 [2013]).