Fox v. Wiener Laces, Inc.
| Citation | 432 N.Y.S.2d 811,105 Misc.2d 672 |
| Parties | Lynn FOX, Plaintiff, v. WIENER LACES, INC., Defendant. WIENER LACES, INC., Plaintiff, v. Lynn Ellen Fox GRADIN, a/k/a Lynn Fox and Allen Gradin, Defendants. |
| Decision Date | 24 October 1980 |
| Court | United States State Supreme Court (New York) |
Peter Marc Stern, New York City, for plaintiff.
Donald Kresge, New York City, for defendant.
The instant motion is another of a recent number of judicial applications addressed to this Court which raise questions as to the efficacy of a putative settlement agreement ostensibly consummated during the conduct of the Court's pre-trial conference function.
This Court views the performance of its mediative function in rendering judicial assistance to litigants and bar during a meaningful pre-trial conference as one of its most significant and salutary expenditures of judicial time and effort. When properly achieved, without hint or exertion of undue external pressure, an amicable adjustment of differences between litigants is frequently the most ideal resolution of civil litigation, which furthers a greater respect for our institutions and the administration of justice, while providing the parties with a result which they can accept as economically and psychologically advantageous (see Maxie v. Gimbel Bros., Inc., 102 Misc.2d 296, 423 N.Y.S.2d 802). Our Courts have long favored such an approach (see Matter of Hecht, 24 A.D.2d 1001, 266 N.Y.S.2d 342). This process has attained greater importance during the current massive judicial efforts to combat undue civil calendar delay.
In this context, the validity and binding nature of the end product of such a procedure (stipulation or agreement) will frequently be determinative of the effectiveness of the process itself. It would appear that our Courts will be increasingly called upon to apply, define and redefine the principles applicable to the efficacy of such agreements. CPLR § 2104 renders them enforceable under certain conditions, and sanctions those made in open Court (see, Covert v. Covert, 50 A.D.2d 622, 374 N.Y.S.2d 432). Where there is no writing, and a dispute exists as to whether an agreement exists, enforcement will be withheld (Accarino v. Hirsch, 6 A.D.2d 795, 175 N.Y.S.2d 435; Rosen v. Grand, 6 A.D.2d 799, 175 N.Y.S.2d 441; see Veith v. ABC Paving Co., 58 A.D.2d 257, 396 N.Y.S.2d 556 (4th Dept.)). Our Court of Appeals has dealt with these principles in In re Dolgin Eldert Corp., 31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d 228, without conclusively determining or defining the effect of a robing room conference or the extent and nature of the writing required. The Appellate Division, First Department has held that a nonrecorded robing room agreement does not meet the statutory open court requirement (Signer v. Abramowitz, 45 A.D.2d 677, 356 N.Y.S.2d 301) but held otherwise when a stipulation is dictated of record (Bernstein v. Salvatore, 62 A.D.2d 945, 404 N.Y.S.2d 12; see also, Owens v. Lombardi, 41 A.D.2d 438, 343 N.Y.S.2d 978). Recently this court invoked an estoppel against a party seeking to upset an agreement not stenographically recorded of record following a pre-trial conference (A. J. Tenwood Associates v. United States Fire Ins. Co., Sup., 428 N.Y.S.2d 606). In a case decided at the same time as the one at bar, this court is holding that an agreement not dictated of record, made by a non-admitted employee of an attorney for a party, can not meet the CPLR requirement for enforcement of an open court agreement.
Movant Lynn Fox has moved to enforce and compel compliance with an alleged agreement settling the above-captioned companion actions made in open court at Trial Term Part XI, and there stenographically dictated of record, which provides, inter alia, for the mutual discontinuance, with prejudice and without costs, of both actions. Wiener Laces, Inc. cross moves to vacate the stipulation of settlement upon the ground that the settlement was not authorized unless conditioned upon the procurement of certain releases barring future defamation actions against third parties which have not yet commenced.
After a robing room and subsequent courtroom conference the attorneys for the respective parties agreed to settle both actions herein by mutual discontinuance with prejudice and without costs. A two page stipulation was dictated of record to the court stenographer by the attorney for the party now seeking to challenge the efficacy of the agreement. The stipulation is brief, unequivocal, contains a normal provision for exchanges of necessary releases and documents (without defining them) and concludes with the statement of the opposing attorney that he consents to the "foregoing
entire stipulation relating to the two litigations." The affidavit of the attorney dictating the stipulation, who now seeks to vacate it, concedes that after exploration of mutual discontinuance, he informed his adversary that he had to consult with his client; that he did so; was authorized to settle; dictated the simple stipulation of record; and tacitly acknowledged that no non-expressed conditions thereto were communicated to opposing counsel. Thereafter the attorney for the party seeking repudiation insisted upon procuring releases of potential defamation claims from persons not parties to either of the settled actions therein. He asserts that his client conditioned his grant of settlement authority thereon, that he intended and assumed such result when he dictated the stipulation of settlement, but he concedes that no reference thereto is contained therein, and that he never in any way communicated the existence of any such condition or reservation to opposing counsel, the court or to the court stenographer. In effect, counsel and his client seek to be relieved of the impact of the settlement agreement based upon a claim of uncommunicated condition or reservation, and possible unilateral mistake made during dictation of the agreement.
The stipulation which is the subject of these motions was dictated into the record and thus fully meets the open court requirements of CPLR 2104. As such it is fully enforceable. (In re Dolgin Eldert Corp., 31 N.Y.2d 1, 334 N.Y.S.2d 833, ...
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