Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 5, 2012. The order denied plaintiff's motion to vacate a prior order of the same court entered February 14, 2011 granting, on default, defendant Bibi F. Sattan's motion to modify a stipulation of settlement dated June 9, 2010 and, upon such vacatur, to deny defendant Bibi F. Sattan's motion.

ORDERED that the order entered April 5, 2012 is reversed, without costs, and plaintiff's motion to vacate the default order entered February 14, 2011 and, upon such vacatur, to deny defendant Bibi F. Sattan's motion to modify the stipulation of settlement dated June 9, 2010 is granted.

The parties settled this personal injury action prior to trial by a stipulation dated September 15, 2008, pursuant to which, among other things, defendants agreed to pay plaintiff the sum of $25,000 in installments. Defendants defaulted in making the required payments, and, on August 3, 2009, plaintiff and defendants reached an agreement whereby defendants agreed to pay the settlement amount of $25,000, by making an immediate payment in the amount of $10,000 and paying the balance of $15,000 in 15 monthly installments beginning on September 1, 2009. Defendants made the first payment of $10,000 and four payments of $1,000 each for the months of September through December 2009, but failed to make any additional monthly payments. On June 9, 2010, by a so-ordered stipulation, it was agreed that the sum of $11,000, which was still due, was to be paid by defendant Bibi F. Sattan, the first payment in the amount of $4,000 to be made in court that day, and thereafter in monthly payments of $500 until the balance was paid off. The sum of $4,000 was paid and, on August 4, 2010, a payment of $500 was made, with no payments made thereafter. There was, thus, an unpaid balance of $6,500.

By order to show cause dated October 18, 2010, defendant Bibi F. Sattan moved to modify the stipulation of settlement dated June 9, 2010. In an affidavit in support of her motion, defendant stated that she was financially unable to pay plaintiff the balance due. On January 26, 2011, Jessica Kronrad, Esq., appeared in court on behalf of plaintiff. Due to inclement weather, the matter was adjourned. By order entered February 14, 2011, upon plaintiff's default in [*2]appearance, the Civil Court granted defendant Bibi F. Sattan's motion to amend the stipulation of settlement of June 9, 2010 to provide that the balance of $6,500 still due plaintiff is deemed fully paid. Plaintiff moved to vacate the February 14, 2011 order and, upon such vacatur, to deny defendant Bibi F. Sattan's motion. By order entered April 5, 2012, the Civil Court denied plaintiff's motion, finding that plaintiff had failed to set forth a reasonable excuse for his default in appearing on February 14, 2011.

Upon a review of the record, we find that the Civil Court improvidently exercised its discretion in denying the branch of plaintiff's motion seeking to vacate the default order entered February 14, 2011. As an excuse for failing to appear in court on February 14, 2011, plaintiff's attorney asserted that, on January 26, 2011, she had been told by the court that the matter was adjourned to February 22, 2011. When another law associate representing plaintiff appeared on February 22, 2011, he was informed that the hearing date for the motion had been adjourned to February 14, 2011 and that the motion had been granted on default due to plaintiff's failure to appear. Under the circumstances presented, we find that plaintiff's attorney provided a detailed explanation as to why an attorney from her law firm did not appear on February 14, 2011 (see Henry v Kuveke, 9 AD3d 476 [2004] Storchevoy v Blinderman, 303 AD2d 672 [2003]), and that a failure of communication involving a court clerk constitutes a reasonable excuse for plaintiff's default (see Matter of Zrake v New York City Dept. of Educ., 17 AD3d 603, 603-604 [2005] Coughlin v Merchants Mut. Ins. Co., 58 AD2d 913 [1977] see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Turning to the merits of defendant Bibi F.Sattan's motion to modify the stipulation dated June 9, 2010, we note that while stipulations of settlement may be vacated or modified where there is sufficient cause to set aside a contract, such as in instances of fraud, collusion, mistake or accident (see Nash v Yablon-Nash, 61 AD3d 832 [2009] Matter of Blackstock v Price, 51 AD3d 914 [2008]), here defendant made no such contentions, but only referred to the financial hardship she was facing, which had resulted in her inability to pay the balance due under the stipulation of $6,500. However, financial hardship is not a valid ground to fail to comply with a stipulation of settlement and seek its modification (see American Honda Fin. Corp., v Francois, 2002 NY Slip Op 40293[U] [App Term, 2d & 11th Jud Dists 2002] see also City of New York, v 130/40 Essex St. Dev. Corp., 302 AD2d 292 [2003]).

Accordingly, the order entered April 5, 2012 is reversed, and plaintiff's motion to vacate the default order entered February 14, 2011 and, upon such vacatur, to deny defendant Bibi F. Sattan's motion to modify the stipulation of settlement dated June 9, 2010 is granted.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014