Opinion
2016-13048.
10-18-2017
In the Matter of Samuel M. GARBER, deceased. Thomas D. Garber, appellant; Amy Garber King, et al., respondents.
Farrell Fritz, P.C., Uniondale, NY (Robert M. Harper of counsel), for appellant. George A. Huwel, Hampton Bay, NY, for respondents.
Farrell Fritz, P.C., Uniondale, NY (Robert M. Harper of counsel), for appellant.
George A. Huwel, Hampton Bay, NY, for respondents.
In a probate proceeding in which the executor of the estate, Thomas D. Garber, petitioned to judicially settle his account, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (Czygier, Jr., S.), entered November 9, 2016, which denied his motion to vacate a stipulation of settlement.
ORDERED that the order is affirmed, with costs payable by the appellant personally.
To vacate the subject stipulation of settlement on the ground of mutual mistake, the appellant was required "to demonstrate that the mistake existed at the time the stipulation was entered into and that it was so substantial that the stipulation failed to represent a true meeting of the parties' minds" ( Mahon v New York City Health & Hosps. Corp., 303 A.D.2d 725, 725, 756 N.Y.S.2d 875 ; see Matter of Steger, 81 A.D.3d 737, 738, 916 N.Y.S.2d 513 ; Kadish Pharm. v. Blue Cross & Blue Shield of Greater N.Y., 114 A.D.2d 439, 494 N.Y.S.2d 354 ). On this record, the appellant failed to meet his burden (see George Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062 ; Yakobowicz v. Yakobowicz, 142 A.D.3d 996, 37 N.Y.S.3d 560 ; Matter of Steger, 81 A.D.3d at 738, 916 N.Y.S.2d 513 ).
The appellant's remaining contentions are without merit.
Accordingly, the Surrogate's Court properly denied the appellant's motion to vacate the stipulation.
BALKIN, J.P., AUSTIN, SGROI and LaSALLE, JJ., concur.