Helwig v. Wilkens

51 A.D.2d 694, 379 N.Y.S.2d 413, 1976 N.Y. App. Div. LEXIS 11134

Opinion

Order, Supreme Court, New York County, entered November 18, 1974, denying defendant’s motion to modify a stipulation dated August 16, 1974 and order of said court, entered October 29, 1975, denying defendant’s motion to vacate the default and the judgment entered thereon in this malpractice action, unanimously affirmed, with one bill of $40 costs and disbursements to respondent. Scrutiny of the record discloses Special Term, properly rejected defendant’s claim that he executed the stipulation in question under duress because he feared reincarceration for contempt, observing that the " 'duress’, if any, was not practiced by [plaintiff] but caused solely by [defendant’s] clearly deliberate flouting of the mandates of the Court”. Patently, plaintiff did not commit or threaten to commit any unlawful act which may be said to have induced defendant to execute the stipulation. There was no duress under the circumstances (see 17 NY Jur, Duress and Undue Influence, §§ 3, 9). It is also noteworthy that defendant, an attorney, was represented by counsel at the time he executed the stipulation. The denial of defendant’s motion to vacate the default was eminently proper in view of his failure to proffer any excuse for the repeated noncompliance with the numerous orders of the court and the lack of a sufficiently detailed affidavit of merit, one not based on mere conclusory assertions. Concur—■ Kupferman, J. P., Murphy, Lupiano, Birns and Lane, JJ.