In Stewart v. Fay Servicing, LLC, the New York Appellate Division, Second Department, adjudicated an appeal in an action commenced by a mortgagor against a mortgagee and its loan servicer in which the mortgagor sought to recover damages for malicious prosecution of a related mortgage foreclosure. In the trial court, the mortgagor through counsel discontinued the action by stipulation order. Thereafter, the mortgagor moved to vacate the stipulated order of discontinuance on the ground he wanted to prosecute the action. The Kings County Supreme Court (Hon. Francois A. Rivera, J.S.C.) denied the motion.

The mortgagor appealed, and the appellate court affirmed the order denying the motion, opining that stipulations made in open court are strongly favored and will not be disturbed absent evidence of fraud, duress, or mistake, which the plaintiffs did not demonstrate.

Quenten E. Gilliam Esq. of Friedman Vartolo LLP represented Fay Servicing in connection with the successful appellate litigation. To learn more about this case, please click the link.