Submitted - October 24, 2019
Michael L. Walker, Brooklyn, NY, for appellant.
Sgouras Law Firm PLLC, Astoria, NY (Athanasios Tommy Sgouras
of counsel), for respondents.
LEONARD B. AUSTIN, J.P. ROBERT J. MILLER JOSEPH J. MALTESE
BETSY BARROS, JJ.
DECISION & ORDER
action to set aside an alleged fraudulent conveyance, the
plaintiff appeals from an order of the Supreme Court, Kings
County (Lara J. Genovesi, J.), dated September 19, 2018. The
order, insofar as appealed from, denied, without a hearing,
that branch of the plaintiff's motion which was to vacate
a stipulation of settlement.
that the order is reversed insofar as appealed from, on the
law, with costs, and the matter is remitted to the Supreme
Court, Kings County, for a hearing in accordance herewith,
and thereafter for a new determination of the subject branch
of the plaintiff's motion.
plaintiff commenced this action to set aside a conveyance of
his interest in certain real property (hereinafter the
subject property) that he made to himself and to the
defendants. He also commenced two other actions (hereinafter
together the other related actions) against the same
defendants seeking the same relief in connection with two
different parcels of real property.
November 21, 2017, the parties and their attorneys appeared
for a settlement conference, and the terms of a settlement
agreement were placed on the record in open court. The
plaintiff agreed to discontinue all three actions with
prejudice. In return, the defendants agreed to grant the
plaintiff's wife a life estate in the subject property.
The defendants also agreed to provide the plaintiff with an
accounting of the revenues and expenses associated with one
of the properties that was the subject of one of the other
related actions, and to allow him to maintain an office at
that location where he would be permitted to operate a
2018, the plaintiff moved to set aside the stipulation of
settlement and to hold the defendants in contempt. In an
order dated September 19, 2018, the Supreme Court denied the
plaintiff's motion without a hearing. The plaintiff
appeals from so much of the order as denied that branch of
his motion which was to set aside the stipulation of
settlement. On appeal, the plaintiff argues that he was
entitled to a hearing on that branch of his motion.
of settlement are favored by the courts and are not to be
lightly set aside, particularly where the terms of the
stipulation were read into the record and the party seeking
to vacate the stipulation was represented by
counsel'" (ATS-1 Corp. v Rodriguez, 156
A.D.3d 674, 676, quoting Town of Clarkstown v M.R.O. Pump
& Tank, 287 A.D.2d 497, 498; see Pierot v
Marom, 172 A.D.3d 928, 929). "'Only where there
is cause sufficient to invalidate a contract, such as fraud,
collusion, mistake or accident, will a party be relieved from
the consequences of a stipulation made during
litigation'" (Bethea v Thousand, 127 A.D.3d
798, 799, quoting Hallock v State of New York, 64
N.Y.2d 224, 230; see Mooney v Manhattan Occupational,
Physical & Speech Therapies, PLLC, 166 A.D.3d 957,
960; Willoughby Rehabilitation & Health Care, LLC v
Webster, 134 A.D.3d 811, 813). Unsubstantiated or
conclusory allegations are insufficient (see Hallock v
State of New York, 64 N.Y.2d at 230; Pieter v
Polin, 148 A.D.3d 1191, 1192; Rogers v Malik,
126 A.D.3d 874, 875).
the plaintiff argued that the stipulation should be vacated
because the defendants had "openly and willfully
violated" the terms of the stipulation. In support of
his position, the plaintiff submitted, inter alia, his own
affidavit, in which he stated that the defendants had, among
other things, assaulted his wife, refused to provide him with
an accounting, and had made it impossible for him to operate
his plumbing business as agreed to in the stipulation by,
among other things, removing and destroying equipment from
his office, disconnecting his phone line, and changing locks
on the property.
a general rule, rescission of a contract is permitted
'for such a breach as substantially defeats its purpose.
It is not permitted for a slight, casual, or technical
breach, but . . . only for such as are material and willful,
or, if not willful, so substantial and fundamental as to
strongly tend to defeat the object of the parties in making
the contract'" (RR Chester, LLC v Arlington
Bldg. Corp., 22 A.D.3d 652, 654, quoting Callanan v
Keeseville, Ausable Chasm & Lake Champlain R.R. Co.,
199 NY 268, 284; see Matter of Kassab v Kasab, 137
A.D.3d 1138, 1140; Willoughby Rehabilitation & Health
Care Ctr., LLC v Webster, 134 A.D.3d 811, 813-814;
Eldridge v Shaw, 99 A.D.3d 1224, 1225-1226).
the circumstances, the factual assertions set forth in the
plaintiff's affidavit were sufficient to warrant a
hearing on the issue of whether the stipulation should be
rescinded due to the defendants' alleged breaches
(accord Bayberry Realties v Eastern Baptist Assn. of
N.Y., Inc., 27 A.D.3d 679, 680; 288/98 W. End
Tenants Corp. v Mosesson, 144 A.D.2d 305, 305-306;
Consolidated Rail Corp. v Industrial Scrap Processing
Corp., 97 A.D.2d 532, 532-533; see generally Cervera
v Bressler, 85 A.D.3d 839, 841-842; cf. Yuwei Zhang
v Ming Ting, 72 A.D.3d 678, 679). Accordingly, the
Supreme Court should not have denied, without a hearing, that
branch of the plaintiff's motion which was to vacate the
stipulation of settlement, and we remit the matter to ...