MACALUSO v. MACALUSO

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

Anthony MACALUSO, Sr., etc., appellant, v. Santo MACALUSO, Jr., et al., respondents.

Decided: May 26, 2009

PETER B. SKELOS, J.P., STEVEN W. FISHER, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Robert W. Mayer, Damon Hagan, and Christopher Ross of counsel), for appellant. Anthony P. Gallo, P.C., Commack, N.Y. (Anthony J. Gallo of counsel), for respondents.

In an action, inter alia, pursuant to Business Corporation Law § 716 to remove the defendant Santo Macaluso, Jr., as an officer and director of the defendant S & M Heating Corp., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated February 5, 2008, as denied his cross motion to set aside the stipulation of settlement entered into by the parties on July 6, 2007.

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

 The Supreme Court properly denied the plaintiff's cross motion to set aside the parties' stipulation of settlement.  “Stipulations of settlement are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel” (Kelley v. Chavez, 33 A.D.3d 590, 591, 821 N.Y.S.2d 466 [citation omitted];  see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Trakansook v. Kerry, 45 A.D.3d 673, 844 N.Y.S.2d 878;  Town of Clarkstown v. M.R.O. Pump & Tank, 287 A.D.2d 497, 498, 731 N.Y.S.2d 231).   Moreover, parties seeking to set aside such a stipulation will be granted such relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake (see McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714;  Hallock v. State of New York, 64 N.Y.2d at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Trakansook v. Kerry, 45 A.D.3d 673, 844 N.Y.S.2d 878;  Kelley v. Chavez, 33 A.D.3d at 591, 821 N.Y.S.2d 466;  Town of Clarkstown v. M.R.O. Pump & Tank, 287 A.D.2d at 498, 731 N.Y.S.2d 231).   Here, the plaintiff's submissions failed to demonstrate good cause to set aside the stipulation.

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