| Campione v Alberti |
| 2012 NY Slip Op 06056 [98 AD3d 706] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Philip A. Campione, Appellant, v Rita A. Alberti,Respondent. |
—[*1] Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Denise Musso and Robert A. Cohenof counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order of theSupreme Court, Nassau County (Maron, J.), dated October 21, 2011, which, after a hearing,denied that branch of his motion which was to vacate a stipulation of settlement entered into onAugust 5, 2009, on the grounds of duress and coercion.
Ordered that the order is affirmed, with costs.
On August 5, 2009, during divorce proceedings, the parties, who were both represented bycounsel, entered into a written stipulation of settlement that "finally resolved" the issues of childcustody and visitation. The stipulation was subsequently so-ordered by the Supreme Court.Thereafter, the plaintiff engaged new counsel and moved, inter alia, to vacate the stipulation onthe ground that he signed it as a result of duress and coercion by the counsel who had representedhim at the time.
The Supreme Court, inter alia, granted the aforementioned branch of the plaintiff's motion tothe extent of ordering a hearing for the limited purpose of determining whether the plaintiffsigned the stipulation as a result of duress or coercion by his former counsel. At the hearing, thecourt heard testimony from the plaintiff, the plaintiff's former attorneys, and the defendant. In anorder issued after the hearing, the Supreme Court set forth its findings that the plaintiff'stestimony was less credible than that of the other witnesses, and its determination that he failedto meet his burden of establishing that the stipulation was the result of duress or coercion.Accordingly, the court denied that branch of the plaintiff's motion which was to vacate thestipulation on the grounds of duress and coercion. The plaintiff appeals from that order, and weaffirm.
"Stipulations of settlement are favored by the courts and are not lightly set aside"(Bruckstein v Bruckstein, 271 AD2d 389, 390 [2000]; see Hallock v State of NewYork, 64 NY2d 224, 230 [1984]; Nigro v Nigro, 44 AD3d 831 [2007]). A party seeking to vacate astipulation of settlement has the burden of showing that it resulted from duress, fraud, oroverreaching, or that its terms were unconscionable (see Cantilli v Cantilli, 40 AD3d 1023, 1024 [2007]; Rubin v Rubin, 33 AD3d 983, 985[2006]; Chambers v McIntyre, 5AD3d 344, 345 [2004]).[*2]
Applying these principles here, the Supreme Courtproperly determined, after the hearing, that the plaintiff failed to establish that the stipulation wasthe result of duress or coercion (see Rubin v Rubin, 33 AD3d at 985-986; Chambers vMcIntyre, 5 AD3d at 345; cf.Castellano v Castellano, 66 AD3d 942 [2009]). The hearing court was in the bestposition to gauge the credibility of the parties, and its resolution of credibility issues is entitled togreat deference on appeal (see Fugazy vFugazy, 44 AD3d 613, 615 [2007]; Lieberman v Lieberman, 21 AD3d 1004, 1005 [2005]). Under thecircumstances presented herein, we decline to disturb the court's determination that the plaintiffdid not meet his burden of showing that the stipulation was the product of duress or coercion.
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion whichwas to vacate the stipulation of settlement on the grounds of duress and coercion.
The plaintiff's remaining contention, that the stipulation should be vacated because it was notproperly acknowledged, is not properly before this Court, as that issue was not decided in theorder appealed from (see Murray v Cityof New York, 43 AD3d 429, 430 [2007]; McKiernan v McKiernan, 277 AD2d433 [2000]). Angiolillo, J.P., Belen, Roman and Sgroi, JJ., concur.