Yoon Pil Kim v. Shull

90 A.D.2d 482, 454 N.Y.S.2d 480, 1982 N.Y. App. Div. LEXIS 18489

Opinion

In a negligence action to recover damages for personal injuries, etc., which was settled prior to trial, plaintiffs appeal from an order of the Supreme Court, Richmond County (Sacks, J.), dated November 30, 1981, which denied their motion (1) to increase defendant’s insurance coverage pursuant to section 676 of the Insurance Law, and (2) to restore the case to the Trial Calendar. Order affirmed, with $50 costs and disbursements. The written settlement was definite and complete on its face and, as such, it constituted a valid and binding contract. Accordingly, the settlement could only be set aside by way of a plenary suit (see Raphael v Booth Mem. Hosp., 67 AD2d 702; Kraft v Vassilaros & Sons, 43 AD2d 972; Schweber v Berger, 27 AD2d 840). If plaintiffs wish to attack the validity of the settlement on the basis of mutual mistake, then a plenary suit must be brought in equity so as to try the issue of the circumstances under which the settlement was made. Titone, J. P., Weinstein, Gulotta and Niehoff, JJ., concur.