Matter of Garber

Matter of Garber 2017 NY Slip Op 07254 Decided on October 18, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2016-13048

[*1]In the Matter of Samuel M. Garber, deceased. Thomas D. Garber, appellant; Amy Garber King, et al., respondents. (File No. 450/10)

Farrell Fritz, P.C., Uniondale, NY (Robert M. Harper of counsel), for appellant.

George A. Huwel, Hampton Bay, NY, for respondents.

DECISION & ORDER

In a probate proceeding in which the executor of the estate, Thomas D. Garber, petitioned to judicially settle his account, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (Czygier, Jr., S.), entered November 9, 2016, which denied his motion to vacate a stipulation of settlement.

ORDERED that the order is affirmed, with costs payable by the appellant personally.

To vacate the subject stipulation of settlement on the ground of mutual mistake, the appellant was required "to demonstrate that the mistake existed at the time the stipulation was entered into and that it was so substantial that the stipulation failed to represent a true meeting of the parties' minds" (Mahon v New York City Health & Hosps. Corp., 303 AD2d 725, 725; see Matter of Steger, 81 AD3d 737, 738; Kadish Pharm. v Blue Cross & Blue Shield of Greater N.Y., 114 AD2d 439). On this record, the appellant failed to meet his burden (see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219; Yakobowicz v Yakobowicz, 142 AD3d 996; Matter of Steger, 81 AD3d at 738).

The appellant's remaining contentions are without merit.

Accordingly, the Surrogate's Court properly denied the appellant's motion to vacate the stipulation.

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court