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Michael Burt v. Credit Acceptance

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 28, 2011

MICHAEL BURT,
PLAINTIFF-APPELLANT,
v.
CREDIT ACCEPTANCE,
DEFENDANT-RESPONDENT.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered November 22, 2010, which denied his motion to vacate a stipulation of settlement.

Per curiam.

Burt v Credit Acceptance

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2011

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Order (Manuel J. Mendez, J.), entered November 22, 2010, affirmed, without costs.The parties settled this litigation with a stipulation of settlement, wherein plaintiff agreed to discontinue the action with prejudice and release defendant from all claims, in return for defendant's promise to, inter alia, return plaintiff's repossessed vehicle, extinguish his loan balance and pay him $400 compensation for damage to the vehicle and personal property. In the absence of a showing of duress, illegality, fraud or mistake, plaintiff's unilateral decision not to accept the return of the vehicle, allegedly because of its missing license plates and personal property, does not provide a sufficient basis to set aside or modify the binding settlement and release (see Mangini v McClurg, 24 NY2d 556, 563 [1969]; Dunn v Nissan Motor Co., 262 AD2d 444, 445 [1999], lv dismissed in part, denied in part, 94 NY2d 846 [1999]; Calavano v New York City Health & Hosps. Corp., 246 AD2d 317, 319 [1998]). Accordingly, Civil Court properly denied plaintiff's motion to vacate the stipulation of settlement and restore the action to the calendar.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur APRIL 28, 2011 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT March 2011 Term

Hunter, Jr., J.P., Schoenfeld, Torres, JJ. Michael Burt, NY County Clerk's No. Plaintiff-Appellant, 570047/11 - against- Credit Acceptance, Calendar No. 11-082 Defendant-Respondent. Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered November 22, 2010, which denied his motion to vacate a stipulation of settlement. Per Curiam. Order (Manuel J. Mendez, J.), entered November 22, 2010, affirmed, without costs.The parties settled this litigation with a stipulation of settlement, wherein plaintiff agreed to discontinue the action with prejudice and release defendant from all claims, in return for defendant's promise to, inter alia, return plaintiff's repossessed vehicle, extinguish his loan balance and pay him $400 compensation for damage to the vehicle and personal property. In the absence of a showing of duress, illegality, fraud or mistake, plaintiff's unilateral decision not to accept the return of the vehicle, allegedly because of its missing license plates and personal property, does not provide a sufficient basis to set aside or modify the binding settlement and release (see Mangini v McClurg, 24 NY2d 556, 563 [1969]; Dunn v Nissan Motor Co., 262 AD2d 444, 445 [1999], lv dismissed in part, denied in part, 94 NY2d 846 [1999]; Calavano v New York City Health & Hosps. Corp., 246 AD2d 317, 319 [1998]).

Accordingly, Civil Court properly denied plaintiff's motion to vacate the stipulation of settlement and restore the action to the calendar.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: April 28, 2011

Decision Date: April 28, 2011

20110428

© 1992-2011 VersusLaw Inc.



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