Dousmanis v. Joe Hornstein, Inc.

• Decision Date: 26 March 1992
• Citation: 181 A.D.2d 592,581 N.Y.S.2d 327
• Parties: Aris Jon DOUSMANIS, Plaintiff-Respondent, v. JOE HORNSTEIN, INC., et al., Defendants, and Union Carbide Corporation, Defendant-Appellant, and Strong Electric Corp., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 327

581 N.Y.S.2d 327

181 A.D.2d 592

Aris Jon DOUSMANIS, Plaintiff-Respondent, v. JOE HORNSTEIN, INC., et al., Defendants and Union Carbide Corporation, Defendant-Appellant and Strong Electric Corp., et al., Defendants [And a third-party action]

Supreme Court, Appellate Division First Department.

March 26, 1992.

Before MURPHY, P.J., and CARRO, ELLERIN, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered October 11, 1990, which, insofar as appealed from denied defendant-appellant's motion to dismiss the first and third causes of action of plaintiff's complaint as barred by the Statute of Limitations, and granted plaintiff's cross-motion to dismiss defendant's affirmative defense of the Statute of Limitations, unanimously affirmed. Order of the same court and justice, entered February 8, 1991, which, insofar as appealed from, denied defendant's motion to renew, unanimously affirmed, with one bill of costs and disbursements of these appeals.

We agree with the IAS court that defendant failed to make a sufficient showing of fraud, collusion, mistake or material misrepresentation by plaintiff or plaintiff's counsel to relieve it of the stipulations in which it waived the defense of the Statute of Limitations (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Matter of Estate of Frutiger, 29 N.Y.2d 143, 149, 324 N.Y.S.2d 36, 272 N.E.2d 543). In any event, neither unilateral mistake nor fraudulent misrepresentation by plaintiff's counsel provide grounds for rescission of the stipulations, since defendant in executing the stipulations, could not have justifiably relied on the legal opinion or conclusion of its adversary's counsel that the action had been timely commenced (Verschell v. Pike, 85 A.D.2d 690, 691, 445 N.Y.S.2d 489).

Finally, denial of defendant's renewal motion was not an abuse of discretion as the motion was not supported by new facts or information that could not have been, with due diligence, readily made part of the original motion. Defendant failed to offer a valid excuse for not having submitted the additional facts on the original motion and the new argument sought to be raised in support of the motion provided an insufficient basis for renewal (see, Matter of Beiny, 132 A.D.2d 190, 210, 522 N.Y.S.2d 511, appeal dsmd. 71 N.Y.2d 994, 529 N.Y.S.2d 277, 524 N.E.2d 879). We have considered defendant's remaining arguments and find them...