KALRA v. KALRA (2008)

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Stack, J.), dated June 11, 2007, as denied that branch of her motion which was, in effect, to vacate a stipulation of settlement entered into after an inquest and to restore the action to the contested matrimonial calendar.

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

 “Stipulations of settlement are favored by the courts and are not lightly set aside” (Gilbert v. Gilbert, 291 A.D.2d 479, 480, 738 N.Y.S.2d 221).   A stipulation of settlement, such as the one at bar, which is entered into in open court by parties who assent to its terms and who are represented by counsel, will not be set aside unless it is shown that the agreement was procured by mistake, fraud, duress, overreaching, or unconscionability (see Matter of Crouse v. Crouse, 53 A.D.3d 750, 862 N.Y.S.2d 615;  Shockome v. Shockome, 53 A.D.3d 610, 862 N.Y.S.2d 99;  Doukas v. Doukas, 47 A.D.3d 753, 849 N.Y.S.2d 656).

 Contrary to the defendant's contention, the record does not disclose that her former counsel was negligent in representing her in connection with the stipulation of settlement which was entered into in open court, without objection by the defendant (see DeGregorio v. Bender, 4 A.D.3d 385, 771 N.Y.S.2d 388;  see also Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   The defendant also failed to demonstrate that the stipulation was the result of duress (see Wilutis v. Wilutis, 184 A.D.2d 639, 587 N.Y.S.2d 171).   Finally, insofar as the defendant contends that the agreement should be set aside on the basis of mistake and fraud, this argument is not properly before us as it is raised for the first time on appeal.