In re Estate of Steger — 81 A.D.3d 737

Majority

p. 737

In the Matter of Estate of Sally C. Steger, Deceased. Mark J. Steger, Appellant; Kenneth Steger et al., Respondents.

[916 NYS2d 513]

In a probate proceeding in which Kenneth Steger petitioned pursuant to SGPA 2205 to compel an estate accounting, Mark J. Steger, the executor of the estate, appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Nassau County (Riordan, S.), dated December 18, 2009, as denied his cross motion to vacate a stipulation of settlement, granted

p. 738

Kenneth Steger’s motion, in effect, to enforce the stipulation of settlement, and granted that branch of John C. Steger’s cross motion which was, in effect, to enforce the stipulation of settlement.

Ordered that the order is affirmed insofar as appealed from, with costs to John C. Steger, payable by the appellant personally.

In order to vacate the stipulation of settlement on the ground of mutual mistake, the appellant was required to demonstrate, by clear and convincing evidence (see Moshe v Town of Ramapo, 54 AD3d 1030 , 1031 [2008]), that a mutual mistake existed at the time the stipulation was entered into, and that the mistake was so substantial that the stipulation failed to represent a true meeting of the parties’ minds (see Etzion v Etzion, 62 AD3d 646 , 653 [2009]; Hannigan v Hannigan, 50 AD3d 957 , 958 [2008]; Gro-Wit Capital, Ltd. v Obigor, LLC, 33 AD3d 859 , 859-860 [2006]; Maury v Maury, 7 AD3d 585 , 586 [2004]; Mahon v New York City Health & Hosps. Corp., 303 AD2d 725 [2003]). The appellant failed to meet his burden (see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211 , 219 [1978]; 2001 Commerce St. Corp. v Star Enter., 14 AD3d 504 , 505 [2005]; see also Harris v Uhlendorf, 24 NY2d 463 , 468 [1969]; Isaacs v Schmuck, 245 NY 77 , 82 [1927]). Accordingly, the Surrogate’s Court properly denied the appellant’s cross motion to vacate the stipulation.

The appellant’s remaining contentions are without merit. Angiolillo, J.P., Hall, Roman and Cohen, JJ., concur.

Cases cited

Moshe v. Town of Ramapo 54 AD3d 1030 N.Y. App. Div. 2008-09-30 at 1031 p. 738
Etzion v. Etzion 62 AD3d 646 N.Y. App. Div. 2009-05-05 at 653 p. 738
Hannigan v. Hannigan 50 AD3d 957 N.Y. App. Div. 2008-04-22 at 958 p. 738
Gro-Wit Capital, Ltd. v. Obigor, LLC 33 AD3d 859 N.Y. App. Div. 2006-10-24 at 859-860 p. 738
Maury v. Maury 7 AD3d 585 N.Y. App. Div. 2004-05-10 at 586 p. 738
Mahon v. New York City Health & Hospital Corp. 303 AD2d 725 N.Y. App. Div. 2003-03-31 p. 738
George Backer Management Corp. v. Acme Quilting Co. 46 NY2d 211 N.Y. 1978-12-07 at 219 p. 738
2001 Commerce Street Corp. v. Star Enterprise 14 AD3d 504 N.Y. App. Div. 2005-01-10 at 505 p. 738
Harris v. Uhlendorf 24 NY2d 463 N.Y. 1969-04-17 at 468 p. 738
Isaacs v. Schmuck 245 NY 77 N.Y. 1927-05-03 at 82 p. 738