Graffeo v. Brenes

• Decision Date: 21 December 1981
• Citation: 445 N.Y.S.2d 223,85 A.D.2d 656
• Parties: Ida GRAFFEO, Plaintiff, v. Christine BRENES et al., Defendants. Gesualda GANDOLFO et al., Plaintiffs, v. Christine BRENES et al., Defendants. Christine BRENES, Appellant, v. SKYLINE AUTO CORP. et al., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 223

445 N.Y.S.2d 223

85 A.D.2d 656

Ida GRAFFEO, Plaintiff, v. Christine BRENES et al., Defendants.

Gesualda GANDOLFO et al., Plaintiffs, v. Christine BRENES et al., Defendants.

Christine BRENES, Appellant, v. SKYLINE AUTO CORP. et al., Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 21, 1981.

Kuslansky & Dorfman, Brooklyn (Delukey & Shapiro, P. C., Brooklyn, Stanley Shapiro, Brooklyn, of counsel), for appellant.

Simon & White, New York City (Weingrad & Weingrad, P. C., New York City, Stephen A. Weingrad, New York City, of counsel), for respondents.

Before DAMIANI, J. P., and TITONE, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

In a motor vehicle negligence action (Action No. 3), plaintiff appeals from (1) an order of the Supreme Court, Kings County, dated April 21, 1980, which denied her unopposed motion to increase the ad damnum clause of her complaint from $10,000 to $500,000, to amend the caption of the action to state that it was pending in the Supreme Court, Kings County, rather than in the Civil Court, Kings County, and to restore the action to the trial calendar, upon the ground that the action had been previously settled, and (2) a further order of the same court, dated June 16, 1981, which denied, without prejudice, her motion which sought to "vacate the settlement" and thereupon sought the same relief requested in the original motion. (We deem the latter motion to be one in the nature of renewal and reargument of the motion which resulted in the order dated April 21, 1980.)

Order dated June 16, 1981 reversed, motion for renewal and reargument granted, the order dated April 21, 1980 is vacated, and plaintiff's motion, inter alia, to restore the action to the trial calendar, is granted without opposition.

Appeal from the order dated April 21, 1980 dismissed.

Plaintiff is awarded one bill of $50 costs and disbursements.

Plaintiff commenced this negligence action in the Civil Court of the City of New York, Kings County, to recover $10,000 damages for personal injuries and property damage sustained when a vehicle driven by defendant Miranda and owned by defendant Skyline Auto Corp. allegedly went through a red light and struck her vehicle. Two other actions were commenced in the Supreme Court, Kings County, arising out of the same accident. On August 18, 1977 this action was removed to the Supreme Court, Kings County, was consolidated with the other pending actions, and was denominated Action No. 3.

On June 12, 1979 the three cases appeared on the calendar of Trial Term, Part I, for a settlement conference before Mr. Justice FEIDEN. Apparently Actions No. 1 and 2 were settled. The dispute on this appeal centers around whether a valid enforceable settlement was reached in Action No. 3 at that conference.

On November 20, 1979 the case again appeared upon the Trial Term calendar at which time yet a fourth action arising out of the accident was settled. Plaintiff's counsel was actually engaged and did not appear but he claims to have communicated a request that Action No. 3 be marked off the calendar so that he could seek to increase the ad damnum clause.

In April, 1980 plaintiff moved (1) to restore the matter to the trial calendar, (2) to amend the caption of the action to read that it was pending in the Supreme Court, rather than the Civil Court, Kings County, and (3) to increase the ad damnum clause from $10,000 to $500,000. Although the motion went unopposed by the defendants, on April 21, 1980 Mr. Justice GREENSPUN denied it, stating in relevant part, that:

"minutes in the docket of Trial Term, Part I of this court record the action of Christine Brenes as having been settled on June 12, 1979 before Mr. Justice Feiden for the sum of $6,750.00 and that thereafter on June 14, 1979 the said settlement was confirmed."

Plaintiff appealed the order of April 21, 1980 to this court and thereafter she moved in Trial Term, Part I, for an order "vacating the settlement" and for the same relief requested on her original motion. Again her motion went unopposed. On June 16, 1981 Mr. Justice Monteleone denied it without prejudice to renewal after the determination of the appeal from the order of April 21, 1980.

Although the second notice of motion requested that the settlement be vacated, the supporting affidavits of plaintiff and her counsel contended that no settlement had ever been consummated and that two offers by defendant Skyline for $6,750 and $7,800 were rejected because plaintiff's hospital and doctors bills by then exceeded $19,000. Furthermore, they pointed to the fact that after the date upon which court records apparently showed that the action had been settled, the defendant Skyline had requested and had conducted a physical examination of plaintiff, acts which she contended were inconsistent with settlement and referable to said defendant's preparation for trial. We conclude from this that plaintiff's second motion was actually in the nature of renewal and reargument of the initial motion and that she did not really seek vacatur of a settlement because she claimed that, in fact, there had been no settlement.

We have examined the minute...