D.T. Plumbing Supply Corp. v. Weinstein

In related actions to recover damages for accounting malpractice (Action No. 1) and to recover sums owed on a promissory note and for accounting services rendered (Action No. 2), D.T. Plumbing Supply Corp., T & L Investors Corp., Domenick Tonacchio, and Josephine Tonacchio, the plaintiffs in Action No. 1 and the defendants in Action No. 2, appeal from (1) an order of the Supreme Court, Kings County (Shaw, J.), dated April 14, 1997, which granted that branch of the motion of Marvin A. Weinstein and Schooler, Weinstein, Minsky & Lester, P. C., the defendants in Action No. 1, which was to vacate a stipulation of settlement dated September 11, 1996, and (2) an order of the same court, dated November 18, 1997, which granted the motion of Schooler, Weinstein, Minsky & Lester, P. C., the plaintiff in Action No. 2, for leave to serve an amended and supplemental complaint naming D.T. Plumbing [733] Supply Corp. and Silverman, Collura, Chernis & Balzano, P. C., as additional defendants in Action No. 2 and adding causes of action alleging, inter alia, fraud. D.T. Plumbing Supply Corp. and Silverman, Collura, Chernis & Balzano, P. C., purportedly appeal from the order dated November 18, 1997. Ordered that the order dated April 14, 1997, is affirmed; and it is further, Ordered that the purported appeal by D.T. Plumbing Supply Corp. and Silverman, Collura, Chernis & Balzano, P. C., from the order dated November 18, 1997, is dismissed, as those parties did not file a notice of appeal (see, CPLR 5515 [1]); and it is further, Ordered that the appeal by D.T. Plumbing Supply Corp., T & L Investors Corp., Domenick Tonacchio, and Josephine Tonacchio from so much of the order dated November 18, 1997, as granted that branch of the motion which was for leave to serve an amended and supplemental complaint naming D.T. Plumbing Supply Corp. and Silverman, Collura, Chernis & Balzano, P. C., as additional defendants in Action No. 2 is dismissed, as the appellants are not aggrieved by that portion of the order (see, CPLR 5511); and it is further, Ordered that the order dated November 18, 1997, is affirmed insofar as reviewed; and it is further, Ordered that the respondents are awarded one bill of costs. Stipulations of settlement are favored by the courts and generally will not be set aside in the absence of fraud, overreaching, or some other ground sufficient to invalidate a contract (see, Hallock v State of New York, 64 NY2d 224, 230). In this case, where there is evidence of fraud, the court did not err in vacating the parties’ stipulation. Leave to amend a pleading should be freely given (see, CPLR 3025 [b]), absent a showing of prejudice or surprise. Here, there was no demonstration of prejudice or surprise and the proposed amended complaint insofar as it relates to D.T. Plumbing Supply Corp., T & L Investors Corp., Domenick Tonacchio, and Josephine Tonacchio was not patently lacking in merit or palpably insufficient (see, Bobrowsky v Lexus, 215 AD2d 424). Consequently, the court did not improvidently exercise its discretion in permitting the amendment. The appellants’ remaining contention is without merit (see, Morgan v Monaghan, 201 AD2d 711). Bracken, J. P., Pizzuto, Altman and Luciano, JJ., concur.