CASTELLANO v. CASTELLANO

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

Jacqueline CASTELLANO, appellant, v. Michael CASTELLANO, respondent.

Decided: October 27, 2009

PETER B. SKELOS, J.P., JOSEPH COVELLO, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Kalb & Rosenfeld P.C., Commack, N.Y. (John A. Meringolo of counsel), for appellant. Thomas Pietrantonio, P.C., Port Washington, N.Y., for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Suffolk County (Kent, J.), entered September 18, 2008, as denied her motion to set aside the parties' stipulation of settlement, and (2) so much of a judgment of divorce of the same court dated October 23, 2008, as incorporated the parties' stipulation of settlement.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

 “Stipulations of settlement are favored by the courts and are not lightly cast aside” (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  see Matter of Siegel, 29 A.D.3d 914, 814 N.Y.S.2d 548;  Shapira v. Shapira, 283 A.D.2d 477, 478, 724 N.Y.S.2d 646).   “[A]n oral stipulation of settlement with respect to property issues in a matrimonial action, if spread upon the record and found to be fair and reasonable by the court, is not to be disturbed absent a showing of one of the ‘traditional’ grounds for vacatur, e.g., fraud, duress, mistake or overreaching” (Zafran v. Zafran, 28 A.D.3d 752, 753, 813 N.Y.S.2d 305, quoting Harrington v. Harrington, 103 A.D.2d 356, 359, 479 N.Y.S.2d 1000;  see Korngold v. Korngold, 26 A.D.3d 358, 810 N.Y.S.2d 206;  Leahy v. Leahy, 9 A.D.3d 351, 352, 778 N.Y.S.2d 915).

 Applying these principles to the matter at bar, the Supreme Court properly determined that the plaintiff failed to meet her burden in seeking to set aside the parties' stipulation of settlement (see Dimino v. Dimino, 39 A.D.3d 799, 800, 835 N.Y.S.2d 353;  Brennan-Duffy v. Duffy, 22 A.D.3d 699, 804 N.Y.S.2d 399;  Jacobs v. Jacobs, 234 A.D.2d 425, 651 N.Y.S.2d 897), and failed to establish that the stipulation of settlement was the result of duress or overreaching on the part of the defendant (see Garner v. Garner, 46 A.D.3d 1239, 1240, 848 N.Y.S.2d 741;  Rubin v. Rubin, 33 A.D.3d 983, 985-986, 823 N.Y.S.2d 218;  Chambers v. McIntyre, 5 A.D.3d 344, 345, 772 N.Y.S.2d 530).   Accordingly, the court correctly denied the motion to set aside the stipulation of settlement.

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