In this pending proceeding, Kenneth E. Olsen died on December 26, 1998, a resident of Richmond County. The decedent was survived by first cousins and other unknown distributees. His wife, the nominated executrix in his Last Will and Testament, predeceased him.

A petition to probate his Will, dated November 18, 1980, was filed by Richard Dauria and Robert Dauria, decedent's stepsons and nominated successor co-executors in his will. Said Will was admitted to probate without objection and letters testamentary were duly issued to the co-executors on May 25, 2004.

Since that time, this file is replete with litigation brought by one brother or the other, and their battle has waged for almost three years. Indeed, this matter has been settled on more than one occasion, with the latest settlement placed on the record in open court on April 24, 2006, at which time both brothers acknowledged that they understood and agreed to all terms of the stipulation. Nevertheless, the Court continues to receive motions to enforce the terms of their settlement. The Court has heard oral argument on the motions and has reviewed all of the papers heretofore submitted herein, both in support of and in opposition to the motions.

Under the terms of the stipulation of settlement, Robert Dauria acknowledged that he was holding $30,000.00 from the liquidation of bonds, along with some additional estate assets. He obligated himself to send one-half of that sum to this brother within seven days, along with a full accounting and all bank statements relating to the estate accounts. Additionally, Robert Dauria was directed by Order dated November 22, 2006, to pay to Howard M. File, Esq., within thirty days the sum of $2,054.25 for legal fees and disbursements incurred as a result of Robert Dauria's failure to abide by the terms of the court-ordered stipulation of settlement. Finally, Richard Dauria, within twenty days, was to pay to the law offices of Corash & Hollender the sum of $4,500.00 for legal fees as previously agreed to by the parties.

Courts have a strong interest in promoting settlements and in enforcing settlement agreements, especially those made in open court (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 (Morretta v Dyson, 173 AD2d 257). In any attempt to set aside a stipulation of settlement, the allegations forming the basis to set the agreement aside must be examined in light of these strong policy reasons, and such settlements should not be lightly cast aside (Matter of Galasso, 35 NY2d 319), especially in the case of a [*2]stipulation entered into on the record in open court (Matter of Dolgin Eldert Corp., 31 NY2d 1).

Indeed, it is well settled that a stipulation of settlement made in open court is a contract which is binding upon the parties thereto, absent fraud, collusion, mistake or such other factors as would undo a contract (Hallock v State of New York, 64 NY2d 224; Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435). The record in the instant case fails to reveal the existence of any such factors. Accordingly, the parties are bound by their stipulation.

Although Robert Dauria only recently issued a certified check in the amount of $15,035.00 to his brother Richard, he failed to produce any bank statements or cancelled checks for any accounts held on behalf of the estate, as previously agreed to and ordered by the Court. Furthermore, Robert Dauria failed to pay any of the attorney's fee of $2,054.25 awarded to Mr. File by Order dated November 22, 2006.

Accordingly, all parties are directed to comply fully with all terms of the stipulation of settlement. Robert Dauria is to provide his brother with a full accounting of any estate accounts, including bank statements and cancelled checks, within thirty days and to forward to him one-half of any amounts remaining in those accounts. Furthermore, the Court awards Mr. File an additional $1,350.00 in attorney's fees to be paid by Robert Dauria for legal services rendered to force Robert Dauria to comply with the stipulation and prior Orders of the Court. Robert Dauria is therefore directed to pay to Howard M. File, Esq., the total sum of $3,404.25 within twenty days. Finally, Richard Dauria is directed to pay $4,500.00, as per agreement, as the attorney's fee owed by him to Corash & Hollender.

This matter is restored to the calendar of this Court for May 30, 2007 at 9:30 a.m. for all to report to the Court whether or not there has been full compliance with the directions contained herein.

This decision shall constitute the Order of the Court.

Dated:April 17, 2007



JOHN A. FUSCO, Surrogate