In this commercial non-payment proceeding, respondents move by order to show cause for an order, inter alia, vacating and setting aside the stipulation of settlement, vacating and setting aside the judgment that was entered pursuant thereto, or in the alternative, relieving respondent Michael Stallone from

both the stipulation and judgment. Petitioner cross-moves to increase the judgment amount.

Petitioner commenced this commercial non-payment proceeding seeking to recover possession of 2612 Coyle Street and 2622 Coyle Street, Brooklyn, New York. Petitioner named three respondents, Michael Stallone, East Coast Marine Construction, Ltd. and Owl Head Equipment Corp. In paragraph one of the petition, petitioner alleged that respondent Michael [*2]Stallone was the tenant of the premises and that the two corporate respondents were undertenants. All three respondents appeared in the proceeding by the same counsel. In their answer dated October 18, 2009, respondents neither admitted or denied the allegations contained in paragraph one and the Court must therefore assume that respondents admitted that Michael Stallone was petitioner's tenant for purposes of the proceeding ^[FN1].

After several appearances, the matter was resolved in Court on November 23, 2009, when the parties entered into a written stipulation of settlement which was so-ordered by the Court. The stipulation of settlement begins with a recitation of the names of all the parties the parties to the proceeding. Notably, all three respondents are named in this section. The stipulation provided inter alia, that "Respondents now owe $33,500.00 representing all rent and arrears from Sept. 1, 2008 through and including Nov. 30, 2009" and that "[p]etitioner is awarded a final judgment in the sum of 33,500.00." The stipulation called for the immediate issuance of a warrant and a conditional stay of its execution. The stay was conditioned on the payment by respondents of the rental arrears pursuant to a payment schedule. In that portion of the stipulation which sets forth the payment schedule, respondents are referred to collectively, not individually. Indeed, respondents are referred to collectively throughout the stipulation. There is not a single provision contained in stipulation that refers to a particular respondent in his or its individual capacity.

At the end of the stipulation of settlement, there are signature lines for the attorneys for the parties as well as for the parties themselves. Respondents' attorney signed the stipulation on behalf of all respondents. Michael Stallone signed the stipulation for each of the respondents as "Michael Stallone Pres."

In support of their motion, respondents submitted affidavits from Michael Stallone who averred that while he was a named respondent in the proceeding, he was never actually a tenant of the petitioner. He maintained that he is merely a officer and shareholder of the two corporate respondents, the entities that he maintains were the actual tenants. Curiously, he did not annex to his affidavit a copy of the lease agreement, which would be the best evidence of who was actually a tenant, nor did he explain why he admitted being a tenant in his answer.

Mr. Stallone argued that the judgment should be vacated in its entirety because the attorney who represented him in the proceeding and who negotiated and signed the stipulation of settlement on his behalf neglected to raises certain defenses to the proceeding which he believes would have been resulted in the proceeding's dismissal. He further argued that he should be relieved from stipulation and judgment because he was never a tenant on the petitioner and because he signed the stipulation only in his capacity as President of the two corporate respondents. He highlights the fact that the word "Pres." followed his name on each of the signature lines.

Respondents have not demonstrated a sufficient basis for the Court to vacate the stipulation of settlement or the judgment that was entered pursuant thereto. Whether the [*3]respondents' had viable defenses to petitioner's claims is of no moment. Respondents waived these defenses by failing to allege them in their answer and by agreeing to settle the matter pursuant to the stipulation of settlement. The Court will not second guess the litigation strategy of the attorney who represented respondents in the proceeding.

Stipulations of settlement serve "the interest of efficient dispute resolution" and are "essential to the management of court calendars and integrity of the litigation process" and should not be"lightly cast aside" (Hallock v. State of New York, 64 NY2d 224, 230 [citations omitted] ). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" ( id.). Respondents did not establish any of these grounds.

Likewise, there is no basis to relieve Mr. Stallone, in his individual capacity, from the stipulation or judgment. The stipulation of settlement clearly provided for the entry of a possessory and monetary judgment against all respondents, including Mr. Stallone. While Mr. Stallone may have been under the mistaken belief that he was only signing the stipulation in his representative capacity, Mr. Stallone's attorney also signed the stipulation on his behalf. This same attorney appeared in the proceeding for Mr. Stallone and appeared in Court with him when the stipulation of settlement was negotiated and signed. Under these circumstances, Mr. Stallone's attorney had apparent authority to enter into the stipulation on his behalf as a matter of law ( see Hallock v. State of New York, 64 NY2d 224, 231; Arvelo v. Multi Trucking, Inc., 194 AD2d 758, 759; Matter of Gruntz, 168 AD2d 558; Bauer v. Lygren, 113 AD2d 913; Collazo v. New York City Health & Hosps. Corp., 103 AD2d 789). It is well settled that a stipulation made by the attorney will bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation (see Hallock, 64 NY2d at 231; Matter of Byrne v. Nassau County Bd. of Elections, 307 AD2d 1053). Further, even if Mr. Stallone verily believed that he was signing the stipulation only in his representative capacity as President of the two corporate respondents, a unilateral mistake, standing alone, does not suffice as a predicate for the relief respondents request ( see e.g. Surlak v. Surlak, 95 AD2d 371, 384, 466 NYS2d 461 [1983], appeal dismissed 61 NY2d 906 [1984] ). While a unilateral mistake induced by fraud will support a claim for rescission ( see e.g. Surlak, supra ), plaintiff's claims of fraud are insufficient.

Finally, Mr. Stallone's contention that it was mistake to include him in the stipulation since he was never a tenant of the petitioner is belied by the fact that he admitted to being a tenant when he answered the petition. The Court notes that Mr. Stallone did not annex a copy of the lease agreement to his affidavit to verify that he was not a tenant as he alleges.

The Court has considered respondents' remaining arguments and find them to be without merit or unsupported by the record.

Turning to petitioner's cross-motion to amend the judgment, while CPLR 5019(a) authorized this court to correct any mistake, defect or irregularity in a judgment not affecting a substantial right of a party (see, Bolger v. Davis, 127 AD2d 979, 513 NYS2d 54; Crain v. Crain, 109 AD2d 1094, 487 NYS2d 221), the statute not permit the court increase or decrease the amount of damages where there has been no clerical error ( Minnesota Laundry Service, Inc. v. Mellon, 263 App.Div. 889, 32 NYS2d 455 (2nd Dept.) aff'd, 289 NY 749, 46 NE2d 354 (1942); [*4]Schlossberg v. Schlossberg, 62 Misc 2d 699, 309 NYS2d 631 (Fam. Ct., NY Co.1970); Bolger, supra .). In support of the cross-motion, a clerical error is not alleged.

For all of the above reasons, it is hereby

ORDERED that the motion and cross-motion are denied in their entirety.

This constitutes the decision and order of the Court.

Dated: May 14, 2010_____________________________

PETER P. SWEENEY

Civil Court Judge