Arvelo v. Multi Trucking, Inc.

• Decision Date: 28 June 1993
• Citation: 599 N.Y.S.2d 301,194 A.D.2d 758
• Parties: Franklin ARVELO, et al., Appellants, v. MULTI TRUCKING, INC., et al., Defendants Third-Party Plaintiffs-Respondents; Cipico, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 301

599 N.Y.S.2d 301

194 A.D.2d 758

Franklin ARVELO, et al., Appellants, v. MULTI TRUCKING, INC., et al., Defendants Third-Party

Plaintiffs-Respondents;

Cipico, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

June 28, 1993.

Joseph Green, Forest Hills (Warren S. Hecht and Abraham Hecht, on the brief), for appellants.

Sheft & Sheft, New York City (Leonard G. Kamlet, Julian D. Ehrlich and Myra Needleman, of counsel), for defendants third-party plaintiffs-respondents Multi Trucking, Inc. and Theodore Jones.

Garbarini & Scher, P.C., New York City (Steven G. Friedberg and Timothy Jones, of counsel), for third-party defendant-respondent.

Before SULLIVAN, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dunkin, J.), dated April 11, 1991, which (1) denied their motion to restore the case to the trial calendar, and (2) granted the cross motions of the defendants Multi Trucking, Inc. and Theodore Jones, and the third-party defendant Cipico, respectively, to enforce a stipulation settling the action.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

We find unpersuasive the plaintiffs' challenge to the stipulation of settlement entered into in this action. The stipulation was set forth on the record in open court (see, CPLR 2104), and unconditionally provides that the plaintiffs agree to settle the action in return for the payment of $25,000. The credible evidence in the record, including the plain and unequivocal terms of the stipulation itself (see generally, Serna v. Pergament Distribs., 182 A.D.2d 985, 582 N.Y.S.2d 550), flatly refutes the plaintiffs' claim that the individual who negotiated and agreed to the settlement on their behalf (a paralegal employed by their counsel) mistakenly believed that the stipulation was conditioned upon their subsequent approval (see generally, Public Adm'r of County of N.Y. v. Bankers Trust Co., 182 A.D.2d 592, 583 N.Y.S.2d 367; Newman v. Holland, 178 A.D.2d 866, 577 N.Y.S.2d 726; Matter of Kaplan, 150 A.D.2d 687, 541 N.Y.S.2d 559). Under the circumstances of this case, the plaintiffs' claim of unilateral mistake is both factually and legally unavailing (see, e.g., Living Arts v. Kazuko Hillyer Intl., 166 A.D.2d 284, 564 N.Y.S.2d 111).

Similarly, the plaintiffs' claim that their counsel lacked the authority to bind them to the settlement is not well taken. Indeed, their employment of counsel to represent them throughout this litigation and to appear on their behalf at the conference in question precludes this contention (see, 22 NYCRR 202.12[b], [c][4]; 22 NYCRR 202.26[e]; Matter of Gruntz, 168 A.D.2d 558, 562 N.Y.S.2d 779; Bauer v. Lygren, 113 A.D.2d...