PERALTA v. (and additional third-party actions).

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

Gustavo PERALTA, et al., respondents, v. ALL WEATHER TIRE SALES & SERVICE, INC., et al., defendants, Danilo Mendez, defendant-appellant, Falken Tire Corp., et al., defendants third-party plaintiffs; Rosemary Peralta, third-party defendant-appellant (and additional third-party actions).

Decided: January 27, 2009

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and RANDALL T. ENG, JJ. Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill of counsel), for appellants. Argyropoulos & Bender, Astoria, N.Y. (Michael S. Bender of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Danilo Mendez and the third-party defendant Rosemary Peralta appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 31, 2007, as granted that branch of the plaintiffs' motion which was to enforce a written settlement agreement dated June 7, 2004.

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

 Stipulations of settlement are judicially favored, will not lightly be set aside, and “are to be enforced with rigor and without a searching examination into their substance” as long as they are “clear, final and the product of mutual accord” (Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738, 819 N.E.2d 206;  see Cooper v. Hempstead Gen. Hosp., 2 A.D.3d 566, 768 N.Y.S.2d 371).   To be enforceable, stipulations of settlement must conform to the requirements of CPLR 2104 (see DeVita v. Macy's E., Inc., 36 A.D.3d 751, 828 N.Y.S.2d 531;  Marpe v. Dolmetsch, 256 A.D.2d 914, 681 N.Y.S.2d 840;  Conlon v. Concord Pools, 170 A.D.2d 754, 565 N.Y.S.2d 860).  “Pursuant to CPLR 2104, a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys” (Starr v. Rogers, 44 A.D.3d 646, 647, 843 N.Y.S.2d 371;  see Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d at 285, 785 N.Y.S.2d 738, 819 N.E.2d 206;  Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 8-9, 334 N.Y.S.2d 833, 286 N.E.2d 228).

 Applying these principles to the matter at bar, the Supreme Court properly granted that branch of the plaintiffs' motion which was to enforce a written stipulation of settlement resolving this action.   Contrary to the contention of the appellants, Danilo Mendez and Rosemary Peralta, there was no evidence of a mutual mistake requiring rescission or reformation of the stipulation (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;  Mahon v. New York City Health & Hosps. Corp., 303 A.D.2d 725, 756 N.Y.S.2d 875;  Lacoparra v. Bellino, 296 A.D.2d 480, 481, 745 N.Y.S.2d 693;  Kadish Pharm. v. Blue Cross & Blue Shield of Greater N.Y., 114 A.D.2d 439, 494 N.Y.S.2d 354).   Nor is there any merit to the appellants' further contention that their counsel had no legal authority to execute the stipulation on their behalf (see Hallock v. State of New York, 64 N.Y.2d 224, 231-232, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Bubeck v. Main Urology Assoc., 275 A.D.2d 909, 910, 713 N.Y.S.2d 403;  Chattin v. Klock Oil Co., 270 A.D.2d 852, 852-853, 706 N.Y.S.2d 552).

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