Carney v. New York Telephone Co.

We find that the Supreme Court improvidently exercised its discretion by directing R.F. McCahey, an employee of the defendant New York Telephone Company, to appear for an examination before trial, in contravention of a written stipulation entered into between the parties, whereby the plaintiffs agreed to "waive all further depositions of New York Telephone Company”.

The record contains no evidence of fraud, collusion, mistake or other factors which might warrant the vacatur of the stipulation (see, Hallock v State of New York, 64 NY2d 224). Moreover, the plaintiffs accepted the benefits provided under the stipulation when they deposed another employee, who was produced by New York Telephone Company, in accordance with the terms of the parties’ agreement. Under the circumstances, there was no valid reason to vacate the stipulation or to relieve the plaintiffs from their promises and obligations thereunder (see, Saks v Rodney Hous. Corp., 84 AD2d 832). Mangano, J. P., Kunzeman, Fiber and Hooper, JJ., concur.