Barclay v. Citibank, N.A. , 24 N.Y.S.3d 908 ( 2016 )

Barclay v Citibank, N.A. (2016 NY Slip Op 01242)

Barclay v Citibank, N.A.

2016 NY Slip Op 01242

Decided on February 18, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 18, 2016
Renwick, J.P., Andrias, Saxe, Richter, JJ.

267 401104/12

[*1]Patrick H. Barclay, also known as Independent Anchor, Plaintiff-Appellant,

v

Citibank, N.A., Defendant-Respondent.

H. Patrick Barclay, appellant pro se.

Zeichner Ellman & Krause LLP, New York (Greg M. Bernhard of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 8, 2014, which denied plaintiff pro se's motion to correct a stipulation, settlement and release, unanimously affirmed, without costs.

The stipulation of settlement, signed by the parties, and so-ordered in open court, explicitly stated that Citibank agreed to pay $6,500 in satisfaction of the action, comprised of $5,000 plus $1,500 interest calculated at 6% for five years. The interest formula was specified as: "5000 x 0.006 x 5 = 1500. A notation was made next to the interest formula which stated: "subject to court's approval." Under these circumstances, the stipulation of settlement, "definite and complete upon its face, and spread upon the record in open court, constituted a valid and binding contract between plaintiff and [defendant]" and should stand as written (Term Indus. v Essbee Estates, 88 AD2d 823, 825 [1st Dept 1982]). Plaintiff in open court "acknowledged he understood its terms" (Rivera v State of New York, 115 AD2d 431, 432 [1st Dept 1985]; Sun v Cintron, 11 Misc 3d 129[A], 2006 NY Slip Op 50281[U] [Sup Ct, App Term, 1st Dept 2006]). The motion court properly found no fraud, overreaching, mistake, or any other good cause to set aside plaintiff's consent, and an open court stipulation may not be set aside on the basis of afterthought or change of mind (see Term Indus., 88 AD2d at 825).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 18, 2016

CLERK