CSGA, LLC v Salas

[*1] CSGA, LLC v Salas 2009 NY Slip Op 52449(U) [25 Misc 3d 140(A)] Decided on December 1, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2008-2109 K C.

CSGA, LLC, Respondent,

against

Jose L. Salas, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered May 6, 2008. The order denied defendant's motion to vacate a judgment entered following a default under a stipulation.

ORDERED that the order is affirmed without costs and without prejudice to defendant, if he be so advised, moving in the Civil Court to vacate the judgment on the basis of newly discovered evidence (see CPLR 5015 [a] [2]).

In this action seeking to recover monies owed, the parties entered into a stipulation of settlement pursuant to which defendant was required to make installment payments. Upon defendant's failure to make a payment when due, plaintiff was entitled to enter judgment. A judgment was subsequently entered, and defendant moved to vacate same. In support of the motion, defendant acknowledged that he had defaulted in making the payments required under the stipulation, and explained that his failure to comply with the stipulation was due to his lack of employment.

It is well settled that open-court stipulations of settlement are judicially favored and will not easily be set aside (see generally Hallock v State of New York, 64 NY2d 224 [1984]; Mitchell v New York Hosp., 61 NY2d 208 [1984]; Nash v Yablon-Nash, 61 AD3d 832 [2009]; Matter of Blackstock v Price, 51 AD3d 914 [2008]; Matter of Romero v Martinez, 280 AD2d 58 [2001]). While stipulations of settlement may be vacated on grounds sufficient to set aside a contract, such as in instances of fraud, collusion, mistake or accident (see Nash, 61 AD3d 832; Matter of Blackstock, 51 AD3d 914), here there is no such ground alleged. Defendant's contention on appeal that he did not admit to a breach of the stipulation is belied by his own affidavit in support of the motion to vacate the judgment. Moreover, defendant refers to matters dehors the record which matters cannot be considered on the appeal. Accordingly, the order [*2]denying defendant's motion must be affirmed. However, in the interest of justice, the affirmance is without prejudice to defendant, if he be so advised, moving in the Civil Court to vacate the judgment on the basis of recently obtained documents (see CPLR 5015 [a] [2]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009