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Agusta v Sierra Bx. Seafood Corp.
2004 NY Slip Op 50108(U)
Decided on January 29, 2004
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the Official Reports.


Decided on January 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-486 Q C

PHILIP P. AGUSTA, A.I.A., Respondent, -

against

SIERRA BX. SEAFOOD CORP. and JAMES RODRIGUEZ, Appellants.


Appeal by defendants from so much of an order of the Civil Court, Queens County (K. Kerrigan, J.), entered on March 3, 2003, as denied the branch of their motion seeking to vacate the default judgment.


Order affirmed without costs.

Contrary to defendants' contention, they have failed to establish a meritorious defense to the action. The stipulation of settlement constituted an executory accord and defendants failed to perform their obligations thereunder (see General Obligations Law § 15-501). Consequently, plaintiff could seek to enforce the original judgment (General Obligations Law § 15-501 [3]; Rist v Comi, 250 AD2d 966 [1998]). Thus, the court below properly determined that there was insufficient grounds warranting vacatur of the default judgment.

Pesce, P.J. and Patterson, J., concur.

Golia, J., taking no part.
Decision Date: January 29, 2004