Varveris v. Fisher

• Decision Date: 29 July 1996
• Citation: Varveris v. Fisher, 645 N.Y.S.2d 853, 229 A.D.2d 573 (N.Y. App. Div. 1996)
• Parties: Maria VARVERIS, Appellant, v. Abrom FISHER, et al., Defendants, David Ferguson, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 853

645 N.Y.S.2d 853

229 A.D.2d 573

Maria VARVERIS, Appellant, v. Abrom FISHER, et al., Defendants David Ferguson, et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 29, 1996.

Zavatsky & Mendelsohn, LLP, Syosset (Joseph C. Savino, of counsel), for appellant.

Isaac Anolic, P.C., New York City, for respondents.

Before BRACKEN, J.P., and MILLER, COPERTINO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage on real property, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Winick, J.), dated July 17, 1995, which granted the motion of the defendants David Ferguson and Patricia Emma Ferguson to vacate a judgment of foreclosure and sale dated October 1, 1990, as amended by order dated December 12, 1990, and in effect vacated a stipulation entered into by the plaintiff and the respondents and (2) so much of an order of the same court, dated October 16, 1995, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated July 17, 1995, is dismissed as that order was superseded by the order dated October 16, 1995, made upon reargument; and it is further,

ORDERED that the order dated October 16, 1995, is reversed insofar as appealed from, on the law, the order dated July 17, 1995, is vacated, and the matter is remitted to the Supreme Court, Nassau County, to allow the plaintiff to enforce the stipulation of settlement which contains a foreclosure provision; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

Contrary to the Supreme Court's determination, a stipulation of settlement remains enforceable despite a mistake of law. A stipulation is essentially a contract and may be enforced as such (see, New York Bank for Sav. v. Howard Cortlandt St., 106 A.D.2d 496, 482 N.Y.S.2d 836). Where, as here, there is an oral stipulation made in open court, it is valid and binding and will not be set aside on facts less than needed to avoid a contract, e.g., fraud, collusion, mistake of fact, accident, or some other ground of similar nature (see, Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Matter of O'Garro v. New York State Dept. of Mental Hygiene, 46 N.Y.2d 853, 414 N.Y.S.2d 515, 387 N.E.2d 226; Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d 228; Lazich v. Vittoria & Parker, 196 A.D.2d 526, 527-528, 601 N.Y.S.2d 492; Rivera v. Triple M. Roofing Corp., 116 A.D.2d 561, 497 N.Y.S.2d 416).

Here, the stipulation of the parties provides that the appellant may foreclose the mortgage if the respondents default on their payment obligations. While the Supreme Court found that the stipulation failed in the absence of adequate consideration, the court improperly made that determination based on a finding that the...