Pender v LaSalle Bus Serv., Inc.

[*1] Pender v LaSalle Bus Serv., Inc. 2010 NY Slip Op 51175(U) [28 Misc 3d 127(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2008-1222 K C.

Juvondi Pender, Appellant,

against

LaSalle Bus Service, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered May 30, 2008. The order denied plaintiff's motion to set aside a stipulation of settlement and restore the case to the calendar.

ORDERED that the order is affirmed without costs.

In this action to recover damages for personal injuries allegedly sustained by plaintiff, the parties entered into a stipulation of settlement in open court whereby plaintiff agreed to accept the sum of $10,500 in return for the discontinuance of his action. Thereafter, plaintiff moved to vacate the stipulation and restore the matter to the calendar, arguing that he was not of sound mind when he entered into the stipulation of settlement. The Civil Court denied plaintiff's motion.

It is well settled that open-court stipulations of settlement are judicially favored and will not lightly be set aside (see 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]). A stipulation of settlement may be vacated when there is sufficient cause to set aside a contract, such as in instances of fraud, collusion, mistake or accident, duress, undue influence or lack of mental capacity (see Nash, 61 AD3d 832; Herzfeld v J & M Realty Assoc., 151 AD2d 644 [1989]). Since plaintiff failed to meet his burden of establishing "that at the time of the stipulation of settlement he was suffering from mental illness or defect which rendered him incapable of comprehending the nature of the transaction or making a rational judgment concerning the [*2]transaction, or that . . . he was unable to control his conduct" (Lukaszuk v Lukaszuk, 304 AD2d 625, 625 [2003]; see also Citibank (SD) N.A. v Bissoon, 16 Misc 3d 127[A], 2007 NY Slip Op 51265[U] [App Term, 2d & 11th Jud Dists 2007]), he is bound by the agreement into which he entered (see Weissman v Weissman, 42 AD3d 448 [2007]; see also Ortelere v Teachers' Retirement Bd. of City of NY, 25 NY2d 196 [1969]). Thus, the Civil Court properly denied plaintiff's motion to vacate the stipulation of settlement and restore the case to the calendar, and its order is affirmed.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010