Javarone v. Pallone

• Decision Date: 19 December 1996
• Citation: 234 A.D.2d 814,651 N.Y.S.2d 664
• Parties: Anthony P. JAVARONE et al., Respondents, v. Gina M. PALLONE et al., Defendants, and Dawn M. Moore, Appellant. (And Another Related Action.)
• Court: New York Supreme Court — Appellate Division

Page 664

651 N.Y.S.2d 664

234 A.D.2d 814

Anthony P. JAVARONE et al., Respondents, v. Gina M. PALLONE et al., Defendants and Dawn M. Moore, Appellant (And Another Related Action.)

Supreme Court, Appellate Division Third Department.

Dec. 19, 1996.

Horigan, Horigan, Pennock & Lombardo, P.C. (Krishna K. Singh, of counsel), Amsterdam, for appellant.

Feeney, Centi & Mackey (L. Michael Mackey, of counsel), Albany, for respondents.

Before MIKOLL, J.P., and WHITE, YESAWICH, PETERS and CARPINELLO, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Best, J.), entered January 25, 1996 in Fulton County, which granted plaintiffs' motion to vacate an oral stipulation of discontinuance against defendant Dawn M. Moore and restore the case to the calendar.

As plaintiffs' vehicle was proceeding north on State Route 30 in the Town of Mayfield, Fulton County, on December 29, 1988, it was struck head on by a vehicle operated by defendant Gina M. Pallone. When plaintiffs' vehicle came to rest after the collision, it was struck in the rear by one operated by defendant Dawn M. Moore (hereinafter defendant). Subsequently, plaintiffs commenced this negligence action asserting claims for personal injuries and derivative losses. Due to their failure to comply with certain discovery demands, plaintiffs' note of issue was stricken by Supreme Court on November 9, 1993. At a pretrial conference held on July 7, 1994, the parties stipulated in open court that plaintiffs could submit an order restoring this case to the trial calendar. Plaintiffs' counsel further stipulated that plaintiff Anthony P. Javarone would not pursue a claim for personal injuries against defendant pursuant to a prior concession made at an examination before trial at which plaintiffs were present.

It is undisputed that an order restoring this case to the calendar was never submitted to Supreme Court and that plaintiffs' counsel withdrew from the practice of law in November 1994, leaving plaintiffs without representation until February 1995. Upon completion of the review of plaintiffs' file, plaintiffs' new counsel moved in May 1995 to reinstate the note of issue and to vacate that portion of the July 7, 1994 stipulation pertaining to the discontinuance of Anthony Javarone's claim against defendant. ¹ Supreme Court granted the motion, prompting this appeal by defendant.

To prevail on a motion pursuant to 22 NYCRR 202.21(f), the movant must submit a proper certificate of readiness along with an affidavit showing that the action is meritorious, the reasons for the acts or omissions which resulted in its removal from the calendar and good cause for its reinstatement (see, Maida v. Rite Aid Corp., 210 A.D.2d 589, 590, 619 N.Y.S.2d 812). Our review of plaintiffs' affidavits reveals that they have an arguably meritorious cause of action against defendant and that this case is ready for trial since all pretrial disclosure proceedings have been completed. Considering these circumstances, along with the fact that defendant consented to the restoration of this case to the calendar and that plaintiffs' present predicament is attributable to their former counsel's withdrawal from the practice of law Supreme Court did not err in reinstating the note of issue.

We reach a contrary result, however, with respect to Supreme Court's vacatur of the oral stipulation made by plaintiffs' former counsel. Where, as here, an oral stipulation is made by counsel in open court within the mandates of CPLR 2104, it will be strictly enforced and a party will be relieved from the consequences of same "[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident" (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; see, Newman v. Holland, 178 A.D.2d 866, 867, 577 N.Y.S.2d 726). Strict enforcement of the oral stipulation "not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process" (Sontag v. Sontag, 114 A.D.2d 892, 893, 495 N.Y.S.2d 65, lv dismissed 66 N.Y.2d 554, 498 N.Y.S.2d 133, 488 N.E.2d 1245). Since plaintiffs have wholly failed to set forth sufficient grounds to set aside the stipulation or demonstrate that their attorney, who had represented them for over three years as of July 1994 and had settled with another defendant on their behalf during this time, lacked, at the least, apparent authority to enter into the stipulation, they are bound by it (see, Arvelo v. Multi Trucking, 194 A.D.2d 758, 599 N.Y.S.2d 301; Pak Chong Mar v. New York Infirmary-Beekman Downtown Hosp., 161 A.D.2d 373, 555 N.Y.S.2d 319; Lynch v. Lynch, 122 A.D.2d 572, 505 N.Y.S.2d 739, lv denied 68 N.Y.2d 610, 508 N.Y.S.2d 1027, 501 N.E.2d 600).

YESAWICH, J., concurs.

PETERS, Justice, concurring in part and dissenting in part.

We concur with the majority's conclusion that Supreme Court properly reinstated the note of issue. However, mindful that plaintiffs' present predicament is attributable to the...