El v. Schertz

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J), dated December 7, 2004, which denied her motion to vacate a stipulation of discontinuance dated December 12, 2003, and to restore the action to the trial calendar with respect to the defendant Mark Klutsman. Ordered that the order is affirmed, with costs. The plaintiff failed to make a sufficient showing to vacate the stipulation of discontinuance based on unilateral mistake (see Matter of Frutiger, 29 NY2d 143, 150; G&S Clam Bar v Melillo, 302 AD2d 492 [2003]; Karapetyan v Underwood, 287 AD2d 547 [2001]). Accordingly, the Supreme Court properly denied the plaintiffs motion. Adams, J.P, Ritter, Goldstein, Skelos and Dillon, JJ., concur.