Opinion
February 5, 1990
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiffs' motion is denied.
We find that the Supreme Court improvidently exercised its discretion by directing R.F. McCahey, an employee of the defendant New York Telephone Company, to appear for an examination before trial, in contravention of a written stipulation entered into between the parties, whereby the plaintiffs agreed to "waive all further depositions of New York Telephone Company".
The record contains no evidence of fraud, collusion, mistake or other factors which might warrant the vacatur of the stipulation (see, Hallock v State of New York, 64 N.Y.2d 224). Moreover, the plaintiffs accepted the benefits provided under the stipulation when they deposed another employee, who was produced by New York Telephone Company, in accordance with the terms of the parties' agreement. Under the circumstances, there was no valid reason to vacate the stipulation or to relieve the plaintiffs from their promises and obligations thereunder (see, Saks v Rodney Hous. Corp., 84 A.D.2d 832). Mangano, J.P., Kunzeman, Eiber and Kooper, JJ., concur.