Strang v. Rathbone

• Decision Date: 03 July 2013
• Citation: 968 N.Y.S.2d 572,108 A.D.3d 565,2013 N.Y. Slip Op. 05088
• Parties: In the Matter of Amy M. STRANG, appellant, v. Lewis L. RATHBONE, respondent.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 565

968 N.Y.S.2d 572

2013 N.Y. Slip Op. 05088

In the Matter of Amy M. STRANG, appellant,

v.Lewis L. RATHBONE, respondent.

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

July 3, 2013.

Carol Kahn, New York, N.Y., for appellant.

Clement S. Patti, Jr., White Plains, N.Y., for respondent.

Diane P. Foley, Wappingers Falls, N.Y., attorney for the child.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to Family Court Act article 6, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Dutchess County (Sammarco, J.), dated August 30, 2012, as, upon her consent, awarded the parties joint custody of the subject child, and (2) from an order of the same court dated October 2, 2012, which denied her motion to set aside a stipulation of settlement entered into in open court on May 3, 2012.

ORDERED that the appeal from the order dated August 30, 2012, is dismissed, without costs or disbursements; and it is further,

ORDERED that the order dated October 2, 2012, is affirmed, without costs or disbursements.

Where an order, such as the order dated August 30, 2012, recites that it is made on consent, it is not appealable ( see Matter of Reilly v. Reilly, 49 A.D.3d 883, 884, 853 N.Y.S.2d 900;Matter of Gittens v. Chin–On, 19 A.D.3d 596, 596, 796 N.Y.S.2d 554;Matter of Polyak v. Toyber, 2 A.D.3d 642, 642, 768 N.Y.S.2d 349;Matter of Brouwer v. Pacicca, 291 A.D.2d 448, 449, 737 N.Y.S.2d 541). Accordingly, the mother's appeal from the order dated August 30, 2012, must be dismissed. To the extent that the mother challenges the recitation of consent as it appears on the order dated August 30, 2012, her remedy is to move in Family Court to vacate or resettle the order ( see Matter of Reilly v. Reilly, 49 A.D.3d at 884, 853 N.Y.S.2d 900;Matter of Polyak v. Toyber, 2 A.D.3d at 642–643, 768 N.Y.S.2d 349;Matter of Ras v. Rupp, 295 A.D.2d 892, 893, 743 N.Y.S.2d 760;Matter of Brouwer v. Pacicca, 291 A.D.2d at 449, 737 N.Y.S.2d 541;Nayman v. Remsen Apts., 125 A.D.2d 378, 382, 509 N.Y.S.2d 354).

The Family Court properly denied the mother's motion to set aside the stipulation of settlement entered into in open court on May 3, 2012, based on mistake or duress. “Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress” ( Matter of Blackstock v. Price, 51 A.D.3d 914, 914, 858 N.Y.S.2d 733;see 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 Abidi v. Antohi, 64 A.D.3d 772, 773, 883 N.Y.S.2d 309). Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the...