Burton v. Burton

148 A.D.2d 488, 540 N.Y.S.2d 174, 1989 N.Y. App. Div. LEXIS 2718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1989
• Status: Published

Opinion

In a matrimonial action, in which the parties were divorced by a judgment dated April 23, 1987, the defendant husband appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated July 17, 1987, which, denied his motion, inter alia, to vacate a stipulation of settlement and the ensuing judgment of divorce and granted the plaintiff wife’s cross motion, inter alia, to compel compliance with the judgment of divorce.

Ordered that the order is affirmed, with costs.

The defendant has failed to establish any basis for vacatur of the oral stipulation entered into in open court. We have repeatedly held that relief from a stipulation of settlement will be granted only upon a showing of good cause, such as collusion, mistake, fraud, accident or a similar ground (see, Smith v Smith, 129 AD2d 575; Jensen v Jensen, 110 AD2d 679; De Jose v De Jose, 104 AD2d 629). At bar, the defendant’s allegations of unconscionability, fraud, overreaching, unfairness and incompetence of counsel as cause to vacate the stipulation are unsupported by the record. Moreover, neither the stipulation on its face nor the circumstances surrounding its making suggest that it was arrived at other than fairly (see, Christian v Christian, 42 NY2d 63). Under the circumstances, the defendant’s unsubstantiated claims that he was too ill and emotionally upset to understand the terms of the agreement are insufficient to warrant a vacatur of the stipulation (see, Smith v Smith, supra; Zioncheck v Zioncheck, 99 ). Brown, J. P., Eiber, Sullivan and Harwood, JJ., concur.