| Kirkland v Fayne |
| 2010 NY Slip Op 07898 [78 AD3d 660] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Iva Kirkland, Respondent, v Jerry Fayne et al., Appellants, andEmmorrison Griffiths, Respondent, et al., Defendants. |
—[*1] London Fischer LLP, New York, N.Y. (Miriam B. Cohen of counsel), for appellant WelsbachElectric Corp. Spiegel & Barbato, LLP, Bronx, N.Y. (Brian C. Mardon of counsel), for plaintiff-respondent. Cruz & Gangi (Connors & Connors, P.C., Staten Island, N.Y. [Robert J. Pfuhler], of counsel), fordefendant-respondent.
In a consolidated action to recover damages for personal injuries, the defendants Jerry Fayne andBruce E. Fayne appeal, and the defendant Welsbach Electric Corp. separately appeals, as limited bytheir briefs, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered July 7,2009, as, in effect, granted the motion of the defendant Emmorrison Griffiths and the separate motion ofthe plaintiff to vacate a provision of a so-ordered stipulation dated May 9, 2008, precluding thedefendant Emmorrison Griffiths, inter alia, from testifying at trial if he did not appear for a deposition bya date certain.
Ordered that the order is reversed insofar as appealed from, on the facts, and in the exercise ofdiscretion, with one bill of costs, and the motion of the defendant Emmorrison Griffiths and the separatemotion of the plaintiff to vacate a provision of a so-ordered stipulation dated May 9, 2008, precludingthe defendant Emmorrison Griffiths, inter alia, from testifying at trial if he did not appear for a depositionby a date certain are denied.
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to vacatea provision of a so-ordered stipulation dated May 9, 2008, precluding the defendant EmmorrisonGriffiths, inter alia, from testifying at trial if he did not appear for a deposition by a date certain. Theso-ordered stipulation (hereinafter the stipulation), signed by counsel for each party in this consolidatedaction during a court appearance, is a binding contract (see CPLR 2104; Utica Mut. Ins. Co. v Swim Tech Pool Servs.,Inc., 37 AD3d 706 [2007]; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447[2006]). While a court may relieve a party of the consequences of a stipulation made during litigationwhere there is cause [*2]sufficient to invalidate a contract, such asfraud, collusion, mistake, or accident (see Hallock v State of New York, 64 NY2d 224, 230[1984]; Siltan v City of New York, 300 AD2d 298 [2002]), here, the plaintiff failed todemonstrate good cause sufficient to invalidate the subject provision of the stipulation (see UticaMut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d at 706).
In addition, the Supreme Court improvidently exercised its discretion in granting Griffiths' separatemotion to vacate the aforementioned provision of the stipulation. The stipulation functioned as aconditional order of preclusion, which became absolute upon Griffiths' failure to comply with its terms(see Panagiotou v Samaritan Vil., Inc.,66 AD3d 979, 980 [2009]; Calder vCofta, 49 AD3d 484 [2008]; StateFarm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]). To avoid the adverseimpact of the stipulation, Griffiths was required to demonstrate a reasonable excuse for his failure tocomply with it and the existence of a potentially meritorious defense to the action (see State FarmMut. Auto. Ins. Co. v Hertz Corp., 43 AD3d at 908; Goldsmith Motors Corp. v ChemicalBank, 300 AD2d 440, 441 [2002]; seealso Geliga v Karibian, Inc., 70 AD3d 996 [2010]). Griffiths failed to demonstrate areasonable excuse for his failure to appear for his deposition by the date agreed to in the stipulation(see Walker v Walker, 38 AD2d 720 [1972]; see also Mason v MTA N.Y. City Tr., 38 AD3d 258 [2007]; Maignan v Nahar, 37 AD3d 557[2007]; Robinson v Rollins Leasing Corp., 288 AD2d 367 [2001]). Furthermore, Griffithsfailed to demonstrate, through evidence in admissible form, the existence of a potentially meritoriousdefense (see HSBC Bank USA N.A. vNuteh 72 Realty Corp., 70 AD3d 998, 999 [2010]). Rivera, J.P., Covello, Eng, Leventhaland Austin, JJ., concur.