BOARD OF MANAGERS OF ATRIUM CONDOMINIUM v. Downtown Enterprises, L.L.C., et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

The BOARD OF MANAGERS OF the ATRIUM CONDOMINIUM, Plaintiff-Respondent, v. WEST 79TH STREET CORP., et al., Defendants, Downtown Enterprises, L.L.C., et al., Defendants-Appellants.

Decided: June 21, 2005

MAZZARELLI, J.P., FRIEDMAN, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Dershowitz, Eiger & Adelson, P.C., New York (Nathan Z. Dershowitz of counsel), for appellants. Edward Rubin, New York, for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 24, 2004, which denied the motion of defendants Downtown Enterprises and Life Night Club and nonparty New Village Gate to set aside a 1999 pre-trial stipulation on grounds of duress, unanimously affirmed, with costs.

The stipulation in question was intended to resolve a dispute over late-night noise levels emanating from the night club.   Stipulations in settlement of disputes are judicially favored and not lightly set aside (Matter of Guttenplan, 222 A.D.2d 255, 634 N.Y.S.2d 702 [1995], lv. denied 88 N.Y.2d 812, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ).   Here, defendants failed to proffer any basis for voiding the stipulation.   The potential issuance of a temporary restraining order is not a “wrongful threat,” nor were defendants deprived of their free will by virtue of the court adopting such a course of action (see Kranitz v. Strober Org., 181 A.D.2d 441, 580 N.Y.S.2d 350 [1992] ).   Furthermore, defendants benefitted from the stipulation, and then waited nearly six months after its execution before moving to vacate it on grounds of duress.

The supporting papers on the motion urged the recusal of the assigned justice.   That request was not based on any of the grounds specified in Judiciary Law § 14.   Absent such grounds, the trial judge is the sole arbiter of recusal (People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ).