It Ain't Over Till Its Over, Even in Legal Malpractice
As we come up on the end of the baseball season, we are reminded of the Yogi Beria phrase. Here inPsomostithis v Matthews 2012 NY Slip Op 32232(U) August 20, 2012 Supreme Court, Queens County Docket Number: 15200/06 Judge: Martin J. Schulman we see that processing and succeeding at a legal malpractice case is sometimes only the end of the beginning not the beginning of the end.
"This action was commenced in 2006 for legal malpractice, arising out of the representation of plaintiff in a personal injury action by defendant Paul C. Matthews, Esq. in March of 1998, when plaintiff was injured on a ship. The underlying action was ultimately dismissed. Subsequent to the commencement of this action, defendant was declared an incapacitated person, and co-guardians were appointed to him by order dated July 11, 2008 (Sandra L. Sgroi, J., Supreme Court, Suffolk County). The original coguardians were Stephen Masom and Vera Matthews, Mr. Matthews' wife. Vera Matthews subsequently passed away, and Stephen Masom was appointed successor
This action was set down for trial on June 22, 2009. After consulting with, and obtaining the consent of the guardian, Stephen Masom, defense counsel agreed to settle this case in the amount of $350,000.00, with payment to be made four months from June 22, 2009. It was also agreed that judgment interest, at 9% per annum, would accrue on the settlement amount. This settlement agreement was confirmed in writing by defense counsel, and agreed to by the guardian, Stephen Masom, who was also copied on the terms of the settlement. Thereafter, defense counsel sent plaintiff a “Seamen’s Release”, which plaintiff executed and returned on July 2, 2009.
The settlement principal was not paid, and on January 5, 2010, plaintiff moved to compel payment of the settlement and to enter judgment against defendant. In an order of this court dated January 27, 2010, the motion was denied with leave to renew, if necessary, following the resolution of the guardianship proceeding in Suffolk County. By order dated May 23, 2011, the Honorable Martha L. Luft, Supreme Court, Suffolk County, granted plaintiff leave to enter judgment without further notice against defendant Matthews for the unpaid settlement in the amount of $350,000.00, plus interest, pursuant to CPLR §5003-a. In that order, the guardian, Stephen Masom, was granted the power
and duty to take steps to market and/or mortgage certain real properties of defendant Matthews to secure sufficient proceeds to satisfy the obligation owed plaintiff.
That branch of defendant’s motion for an order pursuant to CPLR §3217(a)(2), Mental Hygiene Law § 81.21(b), (c) & (d) and CPLR §5015(a), to set aside the settlement of this action and to vacate the order entered on August 26, 2011, and the judgment entered on October 17, 2011 is denied. Stipulations of settlement are favored by the courts and are not to be lightly set aside (see, e.g., Daniel v Daniel, 224 AD2d 573), especially, where, as here, the party seeking to vacate the stipulation was represented by counsel (See, Hallock v State of New York, 64 NY2d 224 ; see also, Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD2d 497 ; Kazimierski v Weiss, 252 AD2d 481 .) Relief from a stipulation will be granted only upon a showing of
good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake. (See Hallock v State of New York, supra; Kelley v Chavez, 33 AD3d 590 ; Town of Clarkstown v M.R.O. Pump & Tank, Inc., supra.) In this case, defendant has failed to make the requisite showing of good cause sufficient to invalidate the parties’ stipulation of settlement. (See Macaluso v Macaluso, 62 AD3d 963 ; see also Trakansook v Kerry, 45 AD3d 673 ; Matthews v
Castro, 35 AD3d 403 .) "