Wilson v. Wilson

44 A.D.2d 667, 355 N.Y.S.2d 385, 1974 N.Y. App. Div. LEXIS 5218

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1974
• Status: Published

Opinion

—Order, Supreme Court, New York County, entered on September 17, 1973, granting defendant’s motion to set aside a stipulation of settlement and to restore the action for trial, unanimously reversed, on the law and the facts, without costs and without disbursements, the motion denied, the stipulation reinstated and the action remanded for further proceedings. In this matrimonial action, a stipulation was entered into in open court on June 8, 1973 whereby the defendant withdrew his answer and counterclaim. Both parties were represented by counsel and the stipulation was entered into in their presence. Relief from a stipulation of settlement will be granted in the court’s discretion upon showing of good cause, such as collusion, mistake, accident or similar ground (see D & E Development Corp. v. Parkchester Clothes Corp., 27 A D 2d 658; 2A Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2104.05). Scrutiny of the record impels the conclusion that no good cause existed for relieving the defendant of the stipulation. In the absence of a showing of good cause and it no wise appearing that the stipulation was made by the defendant’s attorney without authorization, or is unduly harsh, the stipulation must be adhered to. Concur — Markewich, J. P., Murphy, Lupiano and Steuer, JJ.