Peter Gorman, Respondent, v. Benjamin Ward, as Police Commissioner of the City of New York, et al., Appellants

Peter Gorman, Respondent, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Appellants. [MAJORITY] —Order, Supreme Court, New York County (Edward H. Lehner, J.), entered February 8, 1989, which denied defendants’ motion for summary judgment, unanimously affirmed, without costs or disbursements. We agree with the motion court that a triable issue exists as to whether the sum of $8,666.10 as stated in the parties’ written stipulation correctly embodied their understanding with respect to the reduced vested interest in his pension which plaintiff had agreed to accept. Plaintiff contends that he and his counsel had been provided by defendant’s agent with an erroneous calculation as to the amount of his pension, upon which he justifiably relied. We further conclude that plaintiff’s allegations are sufficiently substantiated for the purposes of opposing the motion. Since mutual mistake or fraud may be the basis for reforming a written agreement (Chimart Assocs. v Paul, 66 NY2d 570, 573), the motion court properly denied summary judgment to defendants. Concur— Sullivan, J. P., Carro, Milonas, Rosenberger and Smith, JJ.