Opinion
8025N Index 20112/14E
01-03-2019
Steven GRANT, Plaintiff–Appellant, v. Arcodio A. ALMONTE, Defendant–Respondent.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondent.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondent.
Sweeny, J.P., Gische, Kahn, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered December 12, 2017, which denied plaintiff's motion to restore the action to the trial calendar, unanimously reversed, on the law, without costs, and the motion granted. The requisite formality necessary to accord an oral agreement binding effect as an "open court" stipulation under CPLR 2104 was not present when, following a pre-trial conference at which an unidentified per diem attorney appeared for plaintiff, the matter was marked "settled" in the court's records. There was no indication of the terms of the settlement, and the agreement was never further recorded, memorialized, or filed with the County Clerk (see Velazquez v. St. Barnabas Hosp., 13 N.Y.3d 894, 895 N.Y.S.2d 286, 922 N.E.2d 872 [2009] ; Andre–Long v. Verizon , 31 A.D.3d 353, 354 , 819 N.Y.S.2d 56 [2006] ; compare Harrison v. NYU Downtown Hosp., 117 A.D.3d 479, 985 N.Y.S.2d 513 [1st Dept. 2014] ).