Opinion
January 19, 1988
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order is affirmed, without costs or disbursements.
We agree with the decision of the Supreme Court to restore this action to the calendar. The parties stipulated "in open court" to mark this action off the calendar to pursue other legal matters relevant to this action. It is well settled that an agreement between parties or their attorneys relating to any matter in "open court", even absent a writing, is binding upon the parties (CPLR 2104; Wimpy's Collision Works v Miceli, 108 A.D.2d 854; Zioncheck v Zioncheck, 99 A.D.2d 563). The agreement at bar is no exception. Moreover, the decision to restore a case to the Trial Calendar is within the court's discretionary power (see, Marco v Sachs, 10 N.Y.2d 542). Bracken, J.P., Kunzeman, Eiber and Harwood, JJ., concur.