From Casetext: Smarter Legal Research

Structured v. Freeman

Appellate Division of the Supreme Court of New York, First Department
Nov 8, 2007
45 A.D.3d 327 (N.Y. App. Div. 2007)

Opinion

Nos. 1947, 1948, 115002/04.

November 8, 2007.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 10, 2006, which denied plaintiffs' motion to vacate a stipulation of voluntary discontinuance of the action with prejudice, unanimously affirmed, with costs.

Before: Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.


Plaintiffs commenced dual actions in Supreme Court and Civil Court seeking review of an arbitration award in favor of defendants in this dispute involving attorneys' fees. Following discussions between the parties, plaintiffs agreed to discontinue the Supreme Court action and executed the stipulation of voluntary discontinuance of the action "with prejudice." The Civil Court subsequently dismissed plaintiffs complaint, which sought declaratory relief, for lack of jurisdiction, but stayed entry of judgment so as to allow plaintiffs an opportunity to seek to vacate the stipulation. Following the deadline set by the Civil Court, plaintiffs moved to vacate the stipulation on the basis of unilateral mistake.

The motion was properly denied where the claimed mistake by plaintiffs, executing the stipulation without realizing that the discontinuance of the action was "with prejudice," is not supported by the record, which establishes that plaintiffs' counsel was in receipt of the proposed stipulation for approximately two months before it was executed. Furthermore, contrary to plaintiffs' argument, enforcement of the stipulation would not result in defendants being unjustly enriched ( see Weissman v Bondy Schloss, 230 AD2d 465, 469, lv dismissed 91 NY2d 887).

We have considered plaintiffs' remaining contentions and find them unavailing.


Summaries of

Structured v. Freeman

Appellate Division of the Supreme Court of New York, First Department
Nov 8, 2007
45 A.D.3d 327 (N.Y. App. Div. 2007)
Case details for

Structured v. Freeman

Case Details

Full title:STRUCTURED ASSET SALES GROUP LLC et al., Appellants, v. MARC D. FREEMAN et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 8, 2007

Citations

45 A.D.3d 327 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 8386
844 N.Y.S.2d 699

Citing Cases

Shouela v. Isaac Shouela Realty' LLC

Even if Eli's counsel saw the email, from Eli prior to completing the stipulation and ignored that request,…

Kadosh v. Kadosh

The stipulation between plaintiff and defendant, made in open court, setting forth the manner of resolving…