Opinion
2018–13524 Index No. 824/17
12-24-2019
Robert YOUNG, Appellant, v. Angelo YOUNG, et al., Respondents.
Michael L. Walker, Brooklyn, NY, for appellant. Sgouras Law Firm PLLC, Astoria, N.Y. (Athanasios Tommy Sgouras of counsel), for respondents.
Michael L. Walker, Brooklyn, NY, for appellant.
Sgouras Law Firm PLLC, Astoria, N.Y. (Athanasios Tommy Sgouras of counsel), for respondents.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER In an action to set aside an alleged fraudulent conveyance, the plaintiff appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated September 19, 2018. The order, insofar as appealed from, denied, without a hearing, that branch of the plaintiff's motion which was to vacate a stipulation of settlement.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing in accordance herewith, and thereafter for a new determination of the subject branch of the plaintiff's motion.
The plaintiff commenced this action to set aside a conveyance of his interest in certain real property (hereinafter the subject property) that he made to himself and to the defendants. He also commenced two other actions (hereinafter together the other related actions) against the same defendants seeking the same relief in connection with two different parcels of real property.
On November 21, 2017, the parties and their attorneys appeared for a settlement conference, and the terms of a settlement agreement were placed on the record in open court. The plaintiff agreed to discontinue all three actions with prejudice. In return, the defendants agreed to grant the plaintiff's wife a life estate in the subject property. The defendants also agreed to provide the plaintiff with an accounting of the revenues and expenses associated with one of the properties that was the subject of one of the other related actions, and to allow him to maintain an office at that location where he would be permitted to operate a plumbing business.
In June 2018, the plaintiff moved to set aside the stipulation of settlement and to hold the defendants in contempt. In an order dated September 19, 2018, the Supreme Court denied the plaintiff's motion without a hearing. The plaintiff appeals from so much of the order as denied that branch of his motion which was to set aside the stipulation of settlement. On appeal, the plaintiff argues that he was entitled to a hearing on that branch of his motion.
" ‘Stipulations of settlement are favored by the courts and are not to be lightly set aside, particularly where the terms of the stipulation were read into the record and the party seeking to vacate the stipulation was represented by counsel’ " ( ATS–1 Corp. v. Rodriguez, 156 A.D.3d 674, 676, 67 N.Y.S.3d 60, quoting Town of Clarkstown v. M.R.O. Pump & Tank, 287 A.D.2d 497, 498, 731 N.Y.S.2d 231 ; see Pierot v. Marom, 172 A.D.3d 928, 929, 100 N.Y.S.3d 364 ). " ‘Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation’ " ( Bethea v. Thousand, 127 A.D.3d 798, 799, 6 N.Y.S.3d 584, quoting Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; see Mooney v. Manhattan Occupational, Physical & Speech Therapies, PLLC, 166 A.D.3d 957, 960, 89 N.Y.S.3d 707 ; Willoughby Rehabilitation & Health Care, LLC v. Webster, 134 A.D.3d 811, 813, 22 N.Y.S.3d 81 ). Unsubstantiated or conclusory allegations are insufficient (see Hallock v. State of New York, 64 N.Y.2d at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Pieter v. Polin, 148 A.D.3d 1191, 1192, 50 N.Y.S.3d 498 ; Rogers v. Malik, 126 A.D.3d 874, 875, 5 N.Y.S.3d 525 ).
Here, the plaintiff argued that the stipulation should be vacated because the defendants had "openly and willfully violated" the terms of the stipulation. In support of his position, the plaintiff submitted, inter alia, his own affidavit, in which he stated that the defendants had, among other things, assaulted his wife, refused to provide him with an accounting, and had made it impossible for him to operate his plumbing business as agreed to in the stipulation by, among other things, removing and destroying equipment from his office, disconnecting his phone line, and changing locks on the property.
"As a general rule, rescission of a contract is permitted ‘for such a breach as substantially defeats its purpose. It is not permitted for a slight, casual, or technical breach, but ... only for such as are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract’ " ( RR Chester, LLC v. Arlington Bldg. Corp., 22 A.D.3d 652, 654, 803 N.Y.S.2d 100, quoting Callanan v. Keeseville, Ausable Chasm & Lake Champlain R.R. Co., 199 N.Y. 268, 284, 92 N.E. 747 ; see Matter of Kassab v. Kasab, 137 A.D.3d 1138, 1140, 27 N.Y.S.3d 680 ; Willoughby Rehabilitation & Health Care Ctr., LLC v. Webster, 134 A.D.3d 811, 813–814, 22 N.Y.S.3d 81 ; Eldridge v. Shaw, 99 A.D.3d 1224, 1225–1226, 952 N.Y.S.2d 360 ).
Under the circumstances, the factual assertions set forth in the plaintiff's affidavit were sufficient to warrant a hearing on the issue of whether the stipulation should be rescinded due to the defendants' alleged breaches (accord Bayberry Realties v. Eastern Baptist Assn. of N.Y., Inc., 27 A.D.3d 679, 680, 812 N.Y.S.2d 875 ; 288/98 W. End Tenants Corp. v. Mosesson, 144 A.D.2d 305, 305–306, 534 N.Y.S.2d 178 ; Consolidated Rail Corp. v. Industrial Scrap Processing Corp., 97 A.D.2d 532, 532–533, 468 N.Y.S.2d 164 ; see generally Cervera v. Bressler, 85 A.D.3d 839, 841–842, 925 N.Y.S.2d 581 ; cf. Yuwei Zhang v. Ming Ting, 72 A.D.3d 678, 679, 899 N.Y.S.2d 277 ). Accordingly, the Supreme Court should not have denied, without a hearing, that branch of the plaintiff's motion which was to vacate the stipulation of settlement, and we remit the matter to the Supreme Court, Kings County, for a hearing in accordance herewith, and thereafter for a new determination of that branch of the plaintiff's motion which was to vacate the stipulation of settlement.
AUSTIN, J.P., MILLER, MALTESE and BARROS, JJ., concur.