Utica Mutual Insurance v. Swim Tech Pool Services Inc.

37 A.D.3d 706, 830 N.Y.S.2d 662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2007
• Status: Published

Opinion

In a subrogation action to recover for property damage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated April 27, 2006, which denied its motion to vacate a provision of a so-ordered stipulation dated November 9, 2005, precluding it from offering evidence at trial concerning the cost of repair of structural damage if it did not produce a witness with knowledge of such cost for a deposition within 60 days.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs motion to vacate a provision of a so-ordered stipulation dated November 9, 2005, which precluded it from offering evidence at trial concerning the cost of repair of structural damage if it did not produce a witness with knowledge of such cost for a deposition within 60 days. A stipulation is a contract (see Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]), and the plaintiff failed to demonstrate, in its initial moving papers, good cause sufficient to invalidate the stipulation, such as fraud, overreaching, duress, or mistake (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matthews v Castro, 35 AD3d 403 [2006]; El v Schertz, 33 AD3d 585 [2006]; Lucadamo v Bridge To Life, Inc., 12 AD3d 422, 423 [2004]; G&S Clam Bar v Melillo, 302 AD2d 492 [2003]). Crane, J.E, Santucci, Dillon and Balkin, JJ., concur.