Summary
In National Enterprise, prior to settlement of the underlying federal action, plaintiffs and defendant law firm entered into a stipulation to settle the third party action which, inter alia, permitted plaintiffs to recommence their action against defendant following settlement of that underlying action.
Summary of this case from Gould Electronics, Inc. v. the United StatesOpinion
March 5, 1992
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Plaintiffs are the successors in interest of a number of companies which were the shareholders of Avant-Garde Computing Inc. and seek to recover $2,159,000 which they had paid in a settlement of a Federal securities violations action entitled In re Avant-Garde Computing Inc. Sec. Litig. (US Dist Ct, NJ, Sept. 5, 1989, Thompson, J. [85 Civ 4149]) and for legal fees incurred in defending that action. Prior to settlement of the Federal action, plaintiffs and defendant law firm, which had represented both plaintiffs and Avant-Garde, entered into a stipulation to settle the third party action which, inter alia, permitted plaintiffs to recommence their action against defendant following settlement of the Federal action.
Parties may to a large extent chart their own procedural course and may stipulate to matters, which stipulation the court will generally enforce (see, Morretta v Dyson, 173 A.D.2d 257). Here, the IAS court properly attributed a fair and reasonable interpretation of the objective and purposes of the stipulation between the parties and correctly determined that the parties meant to postpone their litigation, preserve plaintiffs' contribution claim and render General Obligations Law § 15-108 inapplicable (see, Mitchell v New York Hosp., 61 N.Y.2d 208). Furthermore, the IAS court, in deciding the motion to dismiss the complaint, properly considered plaintiffs' allegations to be true and everything reasonably to be implied therefrom (Rovello v Orofino Realty Co., 40 N.Y.2d 633) and properly determined that the pleading recited sufficient facts to sustain causes of action sounding in legal malpractice (see, Metrokane Imports v Kane, Dalsimer, Kane, Sullivan Kurucz, 150 A.D.2d 153, 155) and implied indemnification (see, Mas v Two Bridges Assocs., 75 N.Y.2d 680), and we find no bar to a recovery for legal expenses incurred (see, Owens v Palm Tree Nursing Home, 89 A.D.2d 619, 621).
Concur — Sullivan, J.P., Rosenberger, Ellerin, Asch and Rubin, JJ.