| Matter of Serpico |
| 2009 NY Slip Op 04071 [62 AD3d 887] |
| May 19, 2009 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Anthony Serpico, Sr., Deceased.Debra Serpico, Respondent; Jon Serpico, Appellant. |
—[*1] John Z. Marangos, Staten Island, N.Y., for respondent.
In a turnover proceeding pursuant to SCPA article 21 to recover real property, the appeal isfrom (1) a decision of the Surrogate's Court, Richmond County (Fusco, S.), dated December 27,2007, and (2) an order of the same court (Gigante, S.) dated January 29, 2008, which granted thepetitioner's motion to vacate a stipulation of discontinuance dated March 8, 2006, and to restorethe matter to the trial calendar.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is reversed, on the law and the facts, and the petitioner's motion isdenied; and it is further,
Ordered that one bill of costs is awarded to the appellant, payable by the petitionerpersonally.
The relief requested by the petitioner is not available by way of a motion since theproceeding was terminated by the stipulation of discontinuance. The petitioner must commence aplenary proceeding to request such relief (see Teitelbaum Holdings v Gold, 48 NY2d 51[1979]; Moshe v Town of Ramapo,54 AD3d 1030 [2008]). Accordingly, the petitioner's motion to vacate the stipulationand restore the matter to the [*2]trial calendar should have beendenied.
In any event, we note, in the interest of judicial economy, that the petitioner is not entitled tothe relief she sought. An oral stipulation entered into by the parties in "open court" is binding(CPLR 2104; see Matter of Abeido vAbeido, 54 AD3d 330 [2008]). "Stipulations of settlement are favored by the courts andnot lightly cast aside . . . Only where there is cause sufficient to invalidate acontract, such as fraud, collusion, mistake or accident, will a party be relieved from theconsequences of a stipulation made during litigation" (Hallock v State of New York, 64NY2d 224, 230 [1984] [citations omitted]; see Matter of Siegel, 29 AD3d 914 [2006]). The record fails tosupport the petitioner's contention that the stipulation of discontinuance was the product of fraud(see Desmond v For-Med Med. Group,P.C., 42 AD3d 559 [2007]; Matter of Irace, 21 AD3d 557, 558 [2005]). Skelos, J.P., Dillon,Leventhal and Chambers, JJ., concur.