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In re Strang

Supreme Court of New York, Second Department

July 3, 2013

In the Matter of Amy M. Strang, appellant,
v.
Lewis L. Rathbone, respondent. Docket No. V-04890-11

Carol Kahn, New York, N.Y., for appellant.

Clement S. Patti, Jr., White Plains, N.Y., for respondent.

Diane P. Foley, Wappingers Falls, N.Y., attorney for the child.

MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO THOMAS A. DICKERSON JEFFREY A. COHEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Dutchess County (Sammarco, J.), dated August 30, 2012, as, upon her consent, awarded the parties joint custody of the subject child, and (2) from an order of the same court dated October 2, 2012, which denied her motion to set aside a stipulation of settlement entered into in open court on May 3, 2012.

ORDERED that the appeal from the order dated August 30, 2012, is dismissed, without costs or disbursements; and it is further,

ORDERED that the order dated October 2, 2012, is affirmed, without costs or disbursements.

Where an order, such as the order dated August 30, 2012, recites that it is made on consent, it is not appealable (see Matter of Reilly v Reilly, 49 A.D.3d 883, 884; Matter of Gittens v Chin-On, 19 A.D.3d 596, 596; Matter of Polyak v Toyber, 2 A.D.3d 642, 642; Matter of Brouwer v Pacicca, 291 A.D.2d 448, 449). Accordingly, the mother's appeal from the order dated August 30, 2012, must be dismissed. To the extent that the mother challenges the recitation of consent as it appears on the order dated August 30, 2012, her remedy is to move in Family Court to vacate or resettle the order (see Matter of Reilly v Reilly, 49 A.D.3d at 884; Matter of Polyak v Toyber, 2 A.D.3d at 642-643; Matter of Ras v Rupp, 295 A.D.2d 892, 893; Matter of Brouwer v Pacicca, 291 A.D.2d at 449; Nayman v Remsen Apts., 125 A.D.2d 378, 382).

The Family Court properly denied the mother's motion to set aside the stipulation of settlement entered into in open court on May 3, 2012, based on mistake or duress. "Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress" (Matter of Blackstock v Price, 51 A.D.3d 914, 914; see Hallock v State of New York, 64 N.Y.2d 224, 230; Matter of Abidi v Antohi, 64 A.D.3d 772, 773). Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the stipulation, and thus properly determined that she voluntarily and knowingly accepted the terms of the stipulation (see Matter of Blackstock v Price, 51 A.D.3d at 914-915; Matter of Siegel, 29 A.D.3d 914, 915). The mother's contentions in support of her motion that she felt "forced into settling" and "misle[]d" by her attorney, and that she "did not fully understand what [she] was agreeing to" are insufficient to establish a claim of mistake or duress so as to warrant setting aside the stipulation of settlement (see Matter of Blackstock v Price, 51 A.D.3d at 914).

DILLON, J.P., ANGIOLILLO, DICKERSON and COHEN, JJ., concur.


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