Allstate Ins. Co. v McNeil

[*1] Allstate Ins. Co. v McNeil 2014 NY Slip Op 51875(U) Decided on December 22, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-2001 Q C

Allstate Insurance Company as Subrogee of JOSEPH WILTSHIRE, Appellant,

against

Marie McNeil, Defendant, -and- PATRICK McNEIL, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered May 29, 2013. The order granted defendant Patrick McNeil's motion to vacate so much of a judgment as had been entered against him based on his default under the terms of a stipulation of settlement.

ORDERED that the order is reversed, without costs, and defendant Patrick McNeil's motion to vacate so much of the judgment as had been entered against him is denied.

In this subrogation action, a default judgment in the principal sum of $12,500 was entered in August of 2002 against defendants Marie McNeil and Patrick McNeil upon their failure to appear in the action. Subsequently, pursuant to a stipulation, the default judgment was vacated, and defendants filed an answer. In July of 2006, the Civil Court granted plaintiff's motion to reinstate the default judgment. Thereafter, upon a motion by defendant Patrick McNeil to vacate so much of the default judgment as had been entered against him, he and plaintiff's attorney entered into a so-ordered stipulation of settlement on June 18, 2007 which provided that the matter was settled for the sum of $7,500 and that the default judgment was vacated in its entirety. The stipulation stated that defendants were to make monthly payments of $50 to plaintiff's counsel, commencing on "July 1, 2007 until the balance is paid." The stipulation further provided that if defendants failed to make a payment, then, upon 10 days' notice, plaintiff could "enter judgment for the full amount of the suit, less payments made."

In July of 2012, plaintiff moved for leave to enter judgment on the ground of noncompliance with the stipulation of settlement. Plaintiff asserted that the last payment was made on February 13, 2012. By order entered July 31, 2012, the Civil Court granted plaintiff's motion on default and directed plaintiff to enter judgment against defendant Patrick McNeil in the principal sum of $5,624. A judgment was entered against both defendants on August 20, 2012.

Patrick McNeil made subsequent applications by orders to show cause to vacate so much of the judgment as was against him, indicating, in support of his final application on April 26, 2013, that he would make the payments pursuant to the stipulation of settlement. The Civil Court directed that the motion be heard "only to the extent that defendant claims he is prepared to pay what he owes," and set the matter down for a hearing. Following the hearing, the Civil Court granted Patrick McNeil's motion to vacate so much of the judgment as was entered against him. This appeal by plaintiff ensued.

"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230 [1984]). Patrick McNeil's unsupported assertions of financial hardship do not constitute a valid ground to fail to comply with the so-ordered stipulation (see Glover v Sattan, 43 Misc 3d 132[A], 2014 NY Slip Op 50618[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; see also Nash v Yablon-Nash, 61 AD3d 832 [2009]). We note that while Patrick McNeil had indicated, in support of his final application, that he was prepared to pay the amount he owed plaintiff pursuant to the stipulation, there is no evidence that he tendered any further payments.

Accordingly, the order is reversed and defendant Patrick McNeil's motion to vacate so much of the judgment as had been entered against him is denied.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: December 22, 2014