Kirkland v. Fayne
Opinion of the Court
In a consolidated action to recover damages for personal injuries, the defendants Jerry Fayne and Bruce E. Fayne appeal, and the defendant Welsbach Electric Corp. separately appeals, as limited by their briefs, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered July 7, 2009, as, in effect, granted the motion of the defendant Emmorrison Griffiths and the separate motion of the plaintiff to vacate a provision of a so-ordered stipulation dated May 9, 2008, precluding the defendant Emmorrison Griffiths, inter alia, from testifying at trial if he did not appear for a deposition by a date certain.
Ordered that the order is reversed insofar as appealed from, on the facts, and in the exercise of discretion, with one bill of costs, and the motion of the defendant Emmorrison Griffiths and the separate motion of the plaintiff to vacate a provision of a so-ordered stipulation dated May 9, 2008, precluding the defendant Emmorrison Griffiths, inter alia, from testifying at trial if he did not appear for a deposition by a date certain are denied.
The Supreme Court improvidently exercised its discretion in granting the plaintiffs motion to vacate a provision of a so-ordered stipulation dated May 9, 2008, precluding the defendant Emmorrison Griffiths, inter alia, from testifying at trial if he did not appear for a deposition by a date certain. The so-ordered stipulation (hereinafter the stipulation), signed by counsel for each party in this consolidated action during a court appearance, is a binding contract (see CPLR 2104; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d 706 [2007]; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]). While a court may relieve a party of the consequences of a stipulation made during litigation where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident (see Hallock v Stale of New York, 64 NY2d 224, 230 [1984]; Siltan v City of New York, 300 AD2d 298 [2002]), here, the plaintiff failed to demonstrate good cause sufficient to invalidate the subject provision of the stipulation (see Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d at 706).
In addition, the Supreme Court improvidently exercised its discretion in granting Griffiths’ separate motion to vacate the aforementioned provision of the stipulation. The stipulation functioned as a conditional order of preclusion, which became absolute upon Griffiths’ failure to comply with its terms (see
Case-law data current through December 31, 2025. Source: CourtListener bulk data.