| Chernow v Chernow |
| 2008 NY Slip Op 04457 [51 AD3d 705] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Alan Chernow, Respondent, v Heman Chernow,Appellant. |
—[*1] Wenig, Saltiel & Greene, LLP, Brooklyn, N.Y. (Ira Greene of counsel), forrespondent.
In an action, inter alia, for specific performance of a stipulation of settlement, the defendantappeals (1), as limited by his brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated September 24, 2007, as denied that branch of his motion which wasfor summary judgment dismissing the complaint, and (2) an order of the same court datedOctober 15, 2007, which granted the plaintiff's motion for leave to reargue and, upon reargument,vacated so much of the order dated September 24, 2007, as granted that branch of the defendant'smotion which was to cancel a notice of pendency filed on April 26, 2007, and thereupon deniedthat branch of the defendant's motion and reinstated the notice of pendency nunc pro tunc.
Ordered that the order dated September 24, 2007, is affirmed insofar as appealed from; and itis further,
Ordered that the order dated October 15, 2007, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced a prior action, inter alia, to compel specific performance of acontract with the defendant for the sale of certain real property. Upon a motion by the plaintifffor summary judgment, the Supreme Court granted such relief. While the defendant's appeal ofthat determination was pending, the parties entered into an open court stipulation of settlementwhich provided for a sale of the property pursuant to the terms of the contract with atime-of-the-essence closing at the office of a court-appointed referee on April 26, 2007. ThisCourt was not notified of the settlement, and our determination reversing the grant of summaryjudgment to the plaintiff and dismissing his cause of action for specific performance for failure todemonstrate that he was ready, [*2]willing, and able to close, wasissued prior to the scheduled closing date (see Chernow v Chernow, 39 AD3d 684 [2007]). Upon learning ofour determination, the defendant refused to attend the closing.
The plaintiff commenced this action, inter alia, to compel specific performance of thestipulation of settlement. The defendant moved for summary judgment dismissing the complaintand to cancel the plaintiff's notice of pendency. In an order dated September 24, 2007, the courtdenied that branch of the defendant's motion which was for summary judgment dismissing thecomplaint, but granted that branch of the motion which was to cancel the notice of pendencyfiled by the plaintiff. The plaintiff moved for leave to reargue that branch of the defendant'smotion which was to cancel the notice of pendency. In an order dated October 15, 2007, the courtgranted the plaintiff's motion for leave to reargue and, upon reargument, inter alia, denied thatbranch of the defendant's motion which was to cancel the notice of pendency and reinstated thenotice of pendency nunc pro tunc. The defendant appeals.
The Supreme Court properly denied that branch of the defendant's motion which was forsummary judgment dismissing the complaint. A stipulation of settlement entered into in opencourt constitutes a binding, independent contract between the parties which must be strictlyenforced (see Ferrante v Wold, 36AD3d 585, 587 [2007]; Ross vClyde Beatty-Cole Bros. Circus, 26 AD3d 321, 322 [2006]). Open-court stipulations ofsettlement are judicially favored and will not lightly be set aside (see Hallock v State of NewYork, 64 NY2d 224, 230 [1984]; Trama v Eugene & Shirley Drach Realty Corp., 37 AD3d 454, 455[2007]). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion,mistake or accident, will a party be relieved from the consequences of a stipulation made duringlitigation" (Hallock v State of New York, 64 NY2d at 230; see Trakansook v Kerry, 45 AD3d673 [2007]; Jablonski v Jablonski, 275 AD2d 692, 693 [2000]). Here, in support ofthat branch of his motion which was for summary judgment dismissing the complaint, thedefendant failed to demonstrate, prima facie, that there existed cause sufficient to invalidate thestipulation of settlement. Contrary to the defendant's contention, the stipulation of settlement wasnot contingent in any way upon the timing or outcome of the appeal in Chernow v Chernow (39 AD3d684 [2007]).
Moreover, the Supreme Court properly granted the plaintiff's motion for leave to reargue and,upon reargument, denied that branch of the defendant' s motion which was to cancel theplaintiff's notice of pendency (see Matter of Sakow, 97 NY2d 436 [2002]).
The defendant's remaining contentions are without merit. Ritter, J.P., Covello, Angiolillo andMcCarthy, JJ., concur.