New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2006-028-577, Claim No. 96677, Motion No. M-71184


Motion to vacate a stipulation of discontinuance is denied because Claimant failed to provide an explanation of the almost six year delay in seeking such relief and failed to give a full and believable explanation of the basis of his motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Belinda A. Wagner, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion to renew and/or reargue a prior decision and order of this Court which denied Claimant’s motion to vacate a Stipulation of Discontinuance:

1. Notice of Motion and Supporting Affidavit of Butch Lee Robinson, with annexed Exhibits and accompanying Memorandum of Law;

2. Affirmation in Opposition of Belinda A. Wagner, AAG, with annexed Exhibits

3. Letter Reply of Butch Lee Robinson

Filed papers: Claim; Answer; Stipulation of Discontinuance

In July 1997, Claimant commenced an action against the State of New York, seeking money damages in compensation for personal injuries suffered when he slipped and fell on an icy sidewalk at Washington Correctional Facility in January 1997. His Claim alleged that the State was responsible both for the fall, because it allowed a dangerous condition to exist, and for inadequate and negligent medical treatment Claimant received thereafter.

At the time the Claim was filed, Claimant was represented by Prisoners’ Legal Services of New York, Inc. In August 1998, the Proskin Law Firm was substituted as Claimant’s attorney, and on January 13, 1999, a Note of Issue was filed (Wagner Affirmation, Exhibit 2, B, 6th page). In early August 1999 there was another substitution of counsel, with Alexander P. Kelly, IV, Esq. becoming Claimant’s representative (Robinson affidavit, Exhibit B).

The Court has been presented with only two documents relating to the case after Kelly took over as counsel:
1) a letter dated November 29, 1999 from Kelly to Assistant Attorney General Wagner, containing a list of proposed deponents and potential witnesses (id. Exhibit C; Wagner Affidavit, Exhibit 2, B, 10th and 11th pages), and

2) a Stipulation of Discontinuance, signed by Kelly and Wagner on March 13, 2000 (id. 12th page; Robinson Affidavit, Exhibit D). This stipulation was filed with the Court on March 16, 2000.

Counsel for Defendant reports that Kelly also appeared by telephone at two conferences with another judge of this Court (Wagner Affirmation, ¶ 11). Trial of the action was scheduled to commence on March 20, 2000 (id. Exhibit 4, 11th and 12th pages), but, as noted above, the Claim was discontinued a week earlier, on March 16.

In May 2005, more than five years after the action had been discontinued, Claimant commenced a motion to vacate the Stipulation of Discontinuance. The document filed by Claimant on that motion was merely a one-page Notice of Motion (Robinson Affidavit, Exhibit A) which provided no information about the interactions between Claimant and his counsel leading up to execution of the stipulation or any other pertinent information, such facts that would support his application or an explanation for the five year delay in seeking to vacate. In a Decision and Order filed October 26, 2005, Claimant’s motion was denied, with the Court referencing Claimant’s failure to offer any reason that the stipulation should be vacated and the apparent regularity of the properly signed, unambiguous Stipulation of Discontinuance (Robinson v State of New York, Claim No. 96677, Motion No. M-70187, October 5, 2005, Sise, P.J.). On or about January 3, 2006, Claimant filed a Notice of Appeal, seeking review of the Court’s decision, and later that month, he initiated the instant motion to “renew and reargue.”[1]

In the current motion papers, Claimant explains that when he made his original motion to vacate the stipulation, he was using a form provided to him by the Court and that he followed its instructions literally. Since the form directed only that he should briefly indicate the relief he was requesting, that was the only information he provided. “There was no paragraph that said What are your legal reasons to support having the relief requested granted by the Court. Had there been, I would have certainly presented my reasons why the Stipulation should be vacated” (Robinson Affidavit, ¶ 6).[2]

A motion to reargue must be based upon “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but [it] shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). Its purpose is not to serve as “a vehicle to permit the unsuccessful party to argue once again the very questions previously decided” (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], lv denied 56 NY2d 507, see also Fosdick v Town of Hempstead, 126 NY 651 [1891]; Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992];). Nor may a party use this device to present a new issue, particularly where it is an issue contrary to that party's earlier position (Mehta v Mehta, 196 AD2d 841, 842 [2d Dept 1993]). A motion to reargue a prior decision must be commenced within 30 days after service of the order sought to be reargued, with notice of entry (CPLR 2221[d][3]).[3]

A motion to renew must be based upon additional material facts which existed at the time the prior motion was made but which were not then known to the party seeking leave to renew and which, therefore, were not made known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190 [1st Dept 1987], lv dism 71 NY2d 994; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). The statute now incorporates the requirement, previously established by caselaw, that a movant must set forth a reasonable justification for failing to submit on the prior motion the new facts upon which the motion to renew is based (CPLR 2221 (e) (3), as amended by L 1999, c 281, Greene v New York City Hous. Auth., 283 AD2d 458 [2d Dept 2001]; Ulster Sav. Bank v Goldman, 183 Misc 2d 893 [Sup Ct, Rensselaer County 2000]). A motion for leave to renew is not subject to the same time constraints as govern a motion for leave to reargue, although it has been held that where such a motion is based on a change in the law, it is untimely unless brought before time to appeal the judgment expires (Eagle Ins. Co. v Persaud, 1 AD3d 356, 357 [2d Dept 2003]; Glicksman v Board of Education/Central School Bd. Of Comsewogue Union Free School District, 278 AD2d 364 [2d Dept 2000]).

Because Claimant’s current application is supported by factual information that was not part of the original motion but that was known and available to him at the time that motion was made, this is not properly either a motion to reargue or one to renew. Assuming, arguendo, that the Court were to accept Claimant’s reason for failing to include the information in the original motion, he would still be denied the relief he seeks.

The new information conveyed in the instant motion is that, according to Claimant, he was unaware that Kelly had discontinued the claim until “well after the fact” (Robinson Memorandum of Law, p 1 n). Further, he contends that he did not “by signature, act, word or deed” confer on Kelly authority to compromise or settle the claim, nor did he do anything to lead Defendant to believe that Mr. Kelly was cloaked with “apparent authority’ to settle the matter (Robinson Affidavit, ¶¶ 10, 11). These statements, he contends, shift the burden to Defendant to prove that Mr. Kelly did have authority to settle the matter (id. ¶ 12).

CPLR 3217(a)(2) provides that any party (other than an infant, incompetent or a party with no interest in the subject matter of the action) has an absolute right to discontinue a lawsuit by presenting the Court with “a stipulation in writing signed by the attorneys of record for all parties.” Because stipulations of settlement are favored by the courts and not lightly set aside, as a general proposition, “[a] party will be relieved from the consequences of a stipulation made during litigation ‘[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident’” (Newman v Holland, 178 AD2d 866 [3d Dept 1991]; quoting Hallock v State of New York, 64 NY2d 224, 230 [1984]). In other words, courts will not set aside a stipulation merely because in “hindsight” a party decides that decision to discontinue was unwise (Town of Clarkstown v M.R.O. Pump & Tank, 287 AD2d 497, 498 [2d Dept 2001] ).

Alternatively, the party seeking to vacate such a stipulation may demonstrate that their attorney “was without authority of any sort to enter into the settlement, and therefore no contract ever came into being” (Hallock, 64 NY2d at 230, supra). An attorney’s apparent authority to enter into a stipulation of settlement or discontinuance rests on a factual showing that “the third party relied upon the misrepresentations of the agent because of some misleading conduct on the part of the principal--not the agent" (Ford v Unity Hosp., 32 NY2d 464, 473 [1973]). Such authority can be created by some action or statement on the part of the party, from which the opposing party would reasonably conclude that the attorney had the power to enter into an agreement to settle or discontinue the action. Apparent authority can also arise from the attorney’s prior involvement in settlement negotiations and/or their attendance at a final pre-trial conference (Hallock, 64 NY2d at 232 [The attorney’s presence at the final pre-trial conference constituted “an implied representation” by the plaintiff that his attorney had authority to bind him to the settlement]). If no authority to settle has been granted by the client, the attorney is obliged to inform others of that fact at the conference; if the attorney fails to do so, the client may be bound by the settlement or discontinuance but would have a right to recover any associated damages in an action against the attorney (Hallock, 64 NY2d at 231).

Although there is no fixed time in which a motion to vacate a discontinuance must be made, such an application has been rejected as untimely where it was made seventeen months after the party learned of the grounds on which the application was premised (Cooper v Hempstead General Hosp., 2 AD3d 566 [2d Dept 2003]; see also Bouloy v Peters,

262 AD2d 209 [1st Dept 1999] [untimely after a two year delay]; Khenkin v State of New York, Claim No. 99681, Motion No. M-67700, April 2, 2004, Sise, J. [UID # 2004-028-517][untimely after delay of more than two years]). In Hallock (64 NY2d at 224), the Court of Appeals was critical of a plaintiff who waited two months before voicing objection to a settlement agreed to, without authority, by their attorney. In addition to providing an explanation for any delay, the party seeking to vacate a stipulation must provide a “full and believable explanation” of the basis for seeking such relief (Reyes v State of New York, Claim No. 97476, Motion No. M-61334, June 29, 2000, Read, P.J. [UID # 2000-001-034])

In this instance, Claimant waited four and one-half years before seeking to vacate the discontinuance, and he has failed to include any explanation, much less a full and believable one, for that long period of inaction. Claimant also failed to provide sufficient facts regarding his interactions with Kelly to support his bald assertions that his attorney had neither actual or apparent authority to enter into such discontinuance.

For these reasons, Claimant’s motion is DENIED.

July 27, 2006
Albany, New York

Judge of the Court of Claims

[1]. The question of whether a motion to vacate a stipulation of discontinuance may be made on motion or requires a plenary action has been frequently discussed and debated (see Siegel, Practice Commentaries, McKinney’s Con Laws of NY, Book 7B, CPLR C3217:10 at 743; CPLR 3217[a]; Mahonski v State of New York, Claim No. 91823, Motion No. M-66203, March 10, 2005, Collins, J. [UID #2003-015-316]). In this Court, such a plenary action would in all probability be assigned to the same judge. Therefore, in the interest of judicial economy, the substantive issues will be considered on this motion.
[2]. The form was a “Notice of Motion” which does instruct that the movant is to “briefly indicate relief requested.” The form does not direct the movant to prepare an accompanying affidavit explaining the reasons for requesting such relief, but the following statement is found at the bottom of the form: “The original and two copies of all motion papers, including the notice of motion, supporting affidavits and exhibits, and an affidavit of service, must be filed with the Clerk of the Court . . . .”
[3]. The fact that an appeal has been taken and is pending does not cut off a litigant’s right to move for reargument within the thirty day period, but courts are split on whether the time for such a motion is extended when there is a pending appeal (see Leist v Goldstein 305 AD2d 468 [2d Dept 2003];. Kern v City of Rochester, 3 Misc 3d 948 [Sup Ct, Monroe County 2004]; ).