REACT SERVICE INC v. RINDOS (1997)

In an action, inter alia, to recover damages for unfair competition and to enjoin the defendants from soliciting the plaintiff's customers, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Berke, J.), dated October 1, 1996, as, upon, in effect, granting its motion denominated as one for leave to renew a prior motion to vacate a stipulation of settlement which was determined by order of the same court dated January 18, 1996, adhered to the original determination denying the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Although the plaintiff characterized its motion for reconsideration as one for renewal, it was not based upon new facts which were unavailable at the time the original motion was made and, thus, it was actually a motion for reargument (see, Paulus v. Kuchler, 214 A.D.2d 608, 625 N.Y.S.2d 81;  Huttner v. McDaid, 151 A.D.2d 547, 543 N.Y.S.2d 916).   In any event, having granted reargument, the court did not improvidently exercise its discretion by adhering to the original determination.   Stipulations of settlement, especially those entered into in open court, are favored and not lightly cast aside (see, Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Matter of Galasso, 35 N.Y.2d 319, 321, 361 N.Y.S.2d 871, 320 N.E.2d 618;  Morrison v. Budget Rent A Car Systems, 230 A.D.2d 253, 256, 657 N.Y.S.2d 721;  Lazich v. Lazich, 233 A.D.2d 425, 650 N.Y.S.2d 268;  Matter of Goldman v. Goldman, 201 A.D.2d 860, 608 N.Y.S.2d 533;  Sontag v. Sontag, 114 A.D.2d 892, 495 N.Y.S.2d 65).   A party will be relieved from the consequences of a stipulation made during the course of litigation only where there is cause sufficient to invalidate a contract, such as fraud, duress, overreaching, or mistake (see, Hallock v. State of New York, supra;  Matter of Frutiger, 29 N.Y.2d 143, 149-150, 324 N.Y.S.2d 36, 272 N.E.2d 543).   Here, the plaintiff's bare allegations of fraud, mutual mistake, etc., are insufficient to set aside the stipulation.

MEMORANDUM BY THE COURT.