        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

41
CA 14-01346
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


KENNETH F. MAVING, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LISA M. MAVING, DEFENDANT-RESPONDENT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (SHARI JO REICH OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered November 13, 2013. The order granted the
quantum meruit application of defendant for attorneys’ fees.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and defendant’s
application is denied.

     Memorandum: In this divorce action, plaintiff appeals from an
order granting defendant’s quantum meruit application for attorneys’
fees. The parties’ stipulation of settlement, which was incorporated
but not merged into the judgment of divorce, provided that defendant
could make an application for attorneys’ fees within 15 days of the
date of the stipulation. Defendant’s attorney, however, did not file
the application until almost six months after the date of the
stipulation.

     Plaintiff contends that Supreme Court erred in granting
defendant’s late application for attorneys’ fees, which was in
violation of the stipulation of settlement. We agree. Because
“[m]arital settlement agreements are judicially favored” (Simkin v
Blank, 19 NY3d 46, 52), “[o]nly 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” (Hallock v State of New York, 64 NY2d 224, 230,
citing Matter of Frutiger, 29 NY2d 143, 149-150). Here, defendant
asserts that her attorney mistakenly thought he had 30 days from the
entry of judgment of divorce to file the application. We conclude,
however, that the unilateral mistake of defendant’s attorney does not
excuse defendant’s failure to comply with the terms of a stipulation
where, as here, the language in the stipulation is clear, unequivocal,
and unambiguous (see Morey v Sings, 174 AD2d 870, 872; Hirsch v
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                                                         CA 14-01346

Manzione, 130 AD2d 714, 714-715; 27 Richard A. Lord, Williston on
Contracts § 70:104 at 520 [4th ed 1990]).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
