In this contested proceeding, Maureen Leo, the movant and co-fiduciary of the estate of the decedent, Donald Leo, has moved for a protective order and for enforcement of a stipulation dated May 1, 2017 by filing a ‘Notice of Motion, an ‘Affirmation of Good Faith’, and an ‘Affirmation in Support of Motion’ on December 6, 2017. A ‘Notice of Cross Motion,’ an ‘Affidavit of Shawn Leo’ and an ‘Affirmation of Daniel Antonelli’ were filed on December 27, 2017 seeking to deny Maureen Leo’s motion in its entirety and compelling her to comply with a Notice of Deposition and Demand for Documents and Interrogatories. Maureen Leo thereafter filed an ‘Affidavit in Support and in Opposition’ and an ‘Affirmation in Reply and in Opposition to Cross-Motion on January 16, 2018. Oral argument was heard by the Surrogate on March 14, 2018.FACTSThis contentious matter has a long-standing history which has been recited in previous decisions and will not be recited herein for the sake of brevity. The pending motion focuses on whether or not to enforce a stipulation of discontinuance.Daniel R. Antonelli, Esq. (attorney for Shawn Leo and Jessica Tagliaferro) entered into a written stipulation with Mark S. Piazza (attorney for Maureen Leo) on May 1, 2017. Said stipulation was titled “Stipulation Discontinuing Proceeding” and its purpose was to discontinue Antonelli’s petition to remove Maureen Leo as co-fiduciary. The stipulation in its entirety reads as follows: “It is hereby stipulated and agreed, by and between the undersigned, the attorneys for all parties appearing in this removal proceeding, pursuant to CPLR 3217, that whereas no party hereto is an infant, incompetent person for which a committee has been appointed, or conservatee, and no person not a party has an interest in the subject matter of the proceeding, the captioned proceeding be, and the same hereby is discontinued without attorney fees nor costs to any party. This stipulation may be executed in one or more counterparts, and when taken together shall constitute one fully executed document.”The stipulation was signed by Mr. Antontelli and Mr. Piazza. Additionally, Mr. Antonelli executed a document titled “Affirmation in Support of Discontinuance” dated June 12, 2017 in which he ‘submits this affirmation in support of the annexed stipulation to discontinue the removal proceeding.” He then goes on to state that he attempted to have Debra O’Keefe sign the stipulation to discontinue, but he was not able to do so and since she is an alleged creditor, her signature is not required to discontinue the removal proceeding. He concludes by saying “All interested parties have consented to the discontinuance.” Moreover, on September 13, 2017, a member of Mr. Antonelli’s firm, on the record, in open court indicated “we are looking to withdraw this petition, if we can do it on the record, we would like to do so.”On October 11, 2017, Mr. Antonelli executed a ‘Withdrawal of Consent to Discontinue Removal Proceeding’ in which he withdrew and revoked any consent to discontinue such removal proceeding. In an email to Mr. Piazza (submitted as an exhibit in the moving papers), Mr. Antonelli states “Mark, Again, I apologize for the change of heart but I’m sure you can understand that clients can change their mind. We are proceeding with litigation.” To which Mr. Piazza responds “And I will make the necessary motions to enforce the stip that you executed.”The issue presented herein is whether or not the written ‘Stipulation Discontinuing Proceeding’ entered into on May 1, 2017 between Daniel R. Antonelli, Esq, (attorney for Shawn Leo and Jessica Tagliaferro) and Mark S. Piazza, Esq., (attorney for Maureen Leo) is binding and whether the revocation of that stipulation by Daniel R. Antonelli, Esq. is valid.DISCUSSIONCourts in the State of New York generally favor settlements between parties (Denburg v. Parker Chapin, 82 NY2d 375; Matter of Galasso, 35 NY2d 319). It is also in the interest of public policy and court efficiency to enforce a stipulation of settlement when the facts warrant such settlement. This is even more so when a stipulation happens in “open court” within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process, (Hallock v. State, 64 NY2d 224, 230, 485 NYS2d 510, 512, 474 N.E.2d 1178, 1180 (1984)).A written stipulation was entered into by the attorneys of record on May 1, 2017 indicating that Mr. Antonelli would withdraw a pending petition seeking to remove Maureen Leo as co-fiduciary. Five months later, he sought to revoke that stipulation arguing that at the time the withdrawal was made, the clients had wanted to avoid unnecessary litigation because they were not able to locate a separation agreement. Further, that Sean Leo, one of the co-petitioners seeking the removal action, was under an incredible amount of stress and did not know that regardless of whether or not the separation agreement was found, that his attorney could move under a different legal theory in order to attempt to remove Maureen Leo as co-fiduciary.After a review of the file in its entirety, it is noted, that Sean Leo and his sister had previously entered into a stipulation in which they acknowledge that Maureen Leo is in fact the surviving spouse and is entitled to her elective share. Thereafter, however, motion practice ensued for years in order to undo that stipulation. Now, another stipulation was entered into, in which Mr. Leo and his counsel are trying to vacate.Mr. Antonelli makes the argument that the withdrawal should be allowed because there was no fraud and it was a mistake made during a very difficult time in Sean Leo’s life. Further, he argues that the stipulation was not accepted by the court because it was not executed by the parties in accordance with this court’s standards. Finally, he argues that since this was a pre-decree stipulation, there is a much lower legal standard applied in accepting a withdrawal request in as much as there is no decree to vacate. While there is in fact a two pronged test that can be used to determine whether not a party should be relieved from a stipulation, it is ultimately, in the Court’s discretion. The argument that the parties can be restored to the status quo is unacceptable being that five months were wasted and additional litigation ensued because of this stipulation. Furthermore, the ‘change of heart’ by Sean Leo, an attorney himself, is not enough to warrant vacating the stipulation under the guise of misunderstanding, improvidence, inadvisability, or inequity.After review of all the documents heretofore submitted, and after hearing oral arguments, the court hereby grants Maureen Leo’s motion to enforce the stipulation of settlement as well as for a protective order striking the demand for documents and interrogatories and deposition dated November 2, 2017. The motion for costs is denied. The court denies Sean Leo’s and Jessica Tagliaferro’s cross motion compelling Maureen Leo to comply with the Notice of Deposition, Demand for Documents and Interrogatories.This matter shall next appear on this Court’s Calendar of May 25, 2018 at 9:30 am for control to determine the course of the next issue in this ongoing matter.This decision shall constitute the Order of the Court.Dated: May 3, 2018
