World's Busiest Corner Corp. v. Department of Consumer Affairs

198 A.D.2d 183, 604 N.Y.S.2d 81, 1993 N.Y. App. Div. LEXIS 11140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about February 9, 1993, which denied defendant Hajovsky’s motion to vacate a stipulation, unanimously affirmed, without costs.

Although the stipulation terminated the prior lawsuit, we deem it proper, under the circumstances here, to allow defendant to seek vacatur by motion rather than plenary suit, since the stipulation required defendant Department of Consumer Affairs to act in futuro (see, Teitelbaum Holdings v Gold, 48 NY2d 51, 56).

However, since the Department of Consumer Affairs is required under the stipulation to approve, from five designated sites, a newsstand application if available "and not otherwise prohibited by law”, it cannot be said that the stipulation is illusory or vague and thus subject to vacatur as unenforceable. Nor does defendant Hajovsky demonstrate the Department’s breach of the stipulation because it failed to revoke the licenses of the present licensees of two of the designated sites based on infractions for which fines, rather than termination, were imposed. Concur — Murphy, P. J., Sullivan, Rosenberger, Ross and Rubin, JJ.