Wellness Promotion Services, Inc. v. Linden

294 A.D.2d 116, 740 N.Y.S.2d 871, 2002 N.Y. App. Div. LEXIS 4311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered April 12, 2001, which denied appellant’s motion to vacate a stipulation of discontinuance, and order, same court and Justice, entered August 30, 2001, which, to the extent appealable, denied appellant’s motion to renew, unanimously affirmed, with costs.

Appellant’s motion to vacate a stipulation of discontinuance executed and filed with the court in 1991 was properly denied. Inasmuch as appellant conceded that she signed a general release relinquishing all her claims and acknowledged that the action was legitimately discontinued, the alleged forgery of the settlement agreement provided no basis for vacatur (see, Coppola v WE Mag., 268 AD2d 303).

In any event, the motion to vacate was properly denied as untimely and based on unsubstantiated allegations of fraud (see also, Miller v Lanzisera, 273 AD2d 866, 868, appeal dismissed 95 NY2d 887). Appellant was aware, as far back as 1991, that the action had been discontinued. Furthermore, the court properly concluded that appellant was precluded from asserting her fraud claim, the underlying basis for the motion to vacate, since that claim had been rejected in a related action commenced by appellant in 1998 (Linden v Moskowitz, 294 AD2d 114 [decided herewith]; see, Starbare II Partners v Sloan, 243 AD2d 309).

Appellant’s motion to renew was properly denied since she failed to offer any new evidence, discovered after the prior motion, which would have warranted a different determination. Concur—Andrias, J.P., Sullivan, Wallach, Rubin and Gonzalez, JJ.