Opinion
March 17, 1995
Appeal from the Supreme Court, Erie County, Gorski, J.
Present — Lawton, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting defendant's cross motion to enforce the proposed settlement agreement between the parties (see, Greenidge v. City of New York, 179 A.D.2d 386, 387; Matter of United States Surgical Corp. v. Pignataro, 157 A.D.2d 547). The record shows that the proposed settlement agreement was never signed by the parties or their attorneys. Moreover, although settlement was discussed at pretrial conferences, the record fails to establish that a settlement was entered in "open court" (CPLR 2104) because there are no court minutes that document the fact of the stipulation and its terms (cf., Popovic v. New York City Health Hosps. Corp., 180 A.D.2d 493). We, therefore, modify the order on appeal by denying defendant's cross motion.