Opinion
2014-1508 K C
02-05-2016
Condor Capital Corp., Appellant, v. Marie Claire Delva, Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 10, 2014. The order granted defendant's motion to, in effect, vacate a stipulation of settlement and the judgment entered pursuant thereto.
ORDERED that the order is reversed, without costs, and defendant's motion to, in effect, vacate the stipulation of settlement and the judgment entered pursuant thereto is denied.
In this action to recover for breach of a retail installment contract for the purchase and financing of an automobile, the parties entered into a stipulation of settlement on August 24, 2005 wherein, among other things, defendant acknowledged personal service of the summons and complaint and agreed to make payments of $50 for the first six months and then monthly payments thereafter in the sum of $100, until the balance owed was paid in full. Defendant defaulted in making payments pursuant to the stipulation of settlement, and a judgment was entered in accordance therewith on August 22, 2006 in favor of plaintiff in the principal sum of $6,965.68. Thereafter, income executions were served upon defendant's employers in May 2007 and March 2013 and, over a period of years, plaintiff recovered the sum of $10,225.47. Nearly eight years after the first income execution had been served, defendant moved to, in effect, vacate the stipulation of settlement and the judgment entered pursuant thereto. In support of the motion, defendant alleged that she had not been served properly and that she did not owe the money to plaintiff. She did not assert any legal ground in her moving papers sufficient to invalidate the stipulation of settlement. Nevertheless, the Civil Court granted defendant's motion.
While the August 24, 2005 stipulation subscribed by the parties was not "so-ordered" by the court, there is no requirement that such a stipulation be "so-ordered" (see CPLR 2104). Stipulations of settlement are independent contracts that are subject to the principles of contract law, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d 551 [2002]).
It is well settled that a defect in personal jurisdiction may be waived by entering into a stipulation settling an action (see Matter of Parkside Ltd. Liab. Co., 294 AD2d 582 [2002]) or by making payments pursuant to a judgment or wage garnishment for a substantial period of time (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627 [2014]; Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452 [2007] [defendant waived defense of personal jurisdiction by making payments on the deficiency judgment under a wage garnishment order for over one year before moving to vacate the judgment]; West 187 Street Assocs. v Rojas, 37 Misc 3d 135[A], 2012 NY Slip Op 52110[U] [App Term, 1st Dept 2012]). In the instant case, defendant waived her defense of lack of personal jurisdiction in the stipulation of settlement and, in any event, by virtue of all the payments that had been made regularly over a period of years through wage garnishments, whereby plaintiff received $10,225.47 towards payment of the judgment. Moreover, defendant admitted "liability" in the stipulation and agreed to pay the stipulated amount in monthly installments. Consequently, defendant has failed to demonstrate any basis to vacate the stipulation.
Accordingly, the order is reversed and defendant's motion to, in effect, vacate the stipulation of settlement and the judgment entered pursuant thereto is denied.
Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: February 05, 2016