Opinion
2013-1172 Q C
07-07-2015
Yoon Sik Moon, Respondent, July 7, 2015 v. Angel Lopez and RENE A. LOPEZ, Appellants.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 4, 2013. The order granted plaintiff's motion to vacate a purported settlement of the action and to restore the action to the trial calendar.
ORDERED that the order is affirmed, without costs.
This action to recover for personal injuries allegedly sustained in a motor vehicle accident was commenced in the Supreme Court, Queens County, in 2007 and transferred to the Civil Court, pursuant to CPLR 325 (d), by order dated September 23, 2008. On May 23, 2012, a settlement of the action was purportedly reached in the sum of $10,000. Plaintiff subsequently moved to vacate the purported settlement of theaction and to restore the action to the trial calendar. By order dated March 4, 2013, the Civil Court granted plaintiff's motion.
"An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. . . ." (CPLR 2104). Consequently, the purported stipulation in this case is unenforceable, as it is not in the form of a writing subscribed by the parties or their attorneys, an order entered by the court, or an agreement made between counsel in open court pursuant to CPLR 2104. The notation made by the court on the case card that, on May 23, 2012, the "[p]arties settled for $10K," does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the "open court" requirement of CPLR 2104 (see Andre-Long v Verizon Corp., 31 AD3d 353 [2006]; Falcone v Khurana, 294 AD2d 535 [2002]; Gustaf v Fink, 285 AD2d 625 [2001]; Johnson v Four G's Truck Rental, 244 AD2d 319 [1997]; Kleiner v Thyssen El. Co., 12 Misc 3d 136[A], 2006 NY Slip Op 51272[U] [App Term, 2d & 11th Jud Dists 2006]; Berkeley Realty, LLC v Hicks, 7 Misc 3d 130[A], 2005 NY Slip Op 50540[U] [App Term, 9th & 10th Jud Dists 2005]).
Accordingly, the order is affirmed.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: July 07, 2015