| Canino v Electronic Tech. Co. |
| 2008 NY Slip Op 02526 [49 AD3d 1050] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Ralph R. Canino, Respondent, v Electronic Technologies Companyet al., Appellants. |
—[*1] Pollock Law Firm, Albany (David J. Pollock of counsel), for respondent.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (Work, J.), entered December26, 2006 in Ulster County, which, among other things, denied defendants' motion to amend astipulation of settlement between the parties, and (2) from the judgment entered upon saidstipulation.
Plaintiff was injured when he fell from a ladder in March 1998 while working for defendantElectronic Technologies Company at premises owned by defendant International BusinessMachines Corporation (hereinafter IBM). He commenced an action alleging, among other things,a Labor Law § 240 claim against defendants. After a jury had been selected, the partiesstipulated to a settlement of the action on May 16, 2006. The terms of that stipulation, whichwere placed on the record, included that IBM "has agreed to mail the settlement draft [of$500,000] payable to [plaintiff] within 21 days of today's date postmarked on or about June 6thof 2006" and, if untimely, "[p]laintiff will be entitled to obtain and file a judgement for theamount of this settlement against the defendant IBM."
The payment was not made in a timely fashion as agreed. IBM had been insured at the timeof the accident by Reliance Insurance Company, which went into receivership in 2001. Thestipulation required by the Liquidation Bureau of the State Insurance Department provided that"plaintiff understands and accepts that there may be significant delay in payment." Plaintiff, whowas 83 years old when the case settled, refused to sign that stipulation because it was at oddswith the terms of the open court settlement. Defendants moved to amend the stipulation of [*2]settlement based upon mistake and plaintiff cross-moved forjudgment against defendant. Supreme Court denied defendants' motion and granted plaintiff'scross motion. Defendants appeal.
Defendants contend that, at the time the parties entered into the settlement, there was amistaken understanding as to the time necessary for the Liquidation Bureau to process asettlement payment. Stipulations of settlement are favored and parties will not be relieved of theterms of a settlement made in open court absent a showing sufficient to vitiate a contract, such asfraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224,230 [1984]; Robison v Borelli, 239 AD2d 656, 657 [1997]). While CPLR 5003-a (f)contains a specific exemption from the prompt payment requirements of that statute forsettlements subject to Insurance Law article 74, the parties made no reference in their settlementto CPLR 5003-a or the involvement of the Liquidation Bureau. The terms of the settlement areunambiguous and, to the extent there was a mistake, it was a unilateral mistake by defendants,which does not release a party from a settlement stipulation (see Carney v Carozza, 16 AD3d 867, 868-869 [2005]). The factthat IBM's insurer is in receivership and the Liquidation Bureau is not obligated to pay within aparticular time frame does not relieve IBM from its explicit promise to pay within the agreedupon time.
Defendants' remaining arguments were not asserted before Supreme Court and, in any event,are without merit.
Mercure, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the order and judgment areaffirmed, with costs.