Mayers v. Calamaras Realty Corp.

• Decision Date: 31 March 2019
• Docket Number: Index No. 157347/2015
• Citation: 2019 NY Slip Op 33919 (U)
• Parties: DOE MAYERS, Plaintiff v. CALAMARAS REALTY CORP., Defendant
• Court: New York Supreme Court

2019 NY Slip Op 33919(U)

DOE MAYERS, Plaintiff
v.
CALAMARAS REALTY CORP., Defendant

Index No. 157347/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: April 6, 2020
March 31, 2019

NYSCEF DOC. NO. 38

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Plaintiff commenced this action to recover for injuries to various parts of her body suffered February 22, 2015, when she slipped and fell on ice on defendant's premises at 2101 49th Avenue, Queens County. Plaintiff's attorney Apicella & Schlesinger now moves to enforce a settlement between plaintiff and defendant recited on the record December 5, 2019, and reflected in the court's order signed on that date. C.P.L.R. § 2104.

I. THE SETTLEMENT AGREEMENT

On December 5, 2019, plaintiff, her attorney Philip Schlesinger of Apicella & Schlesinger, and defendant, represented by its attorney Richard Walker of Weiner, Millo, Morgan & Bonanno, LLC, attended a Status Conference where they agreed to settlement terms, which the parties memorialized on the record and the court memorialized in its order. The agreement by both plaintiff and defendant embodied all the settlement's material terms. (1) Defendant would pay and plaintiff would accept

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$100,000.00 in full settlement of her claims for any injuries she suffered February 22, 2015, from her fall on defendant's premises, whatever those injuries were. (2) Out of that sum she would pay her expenses in this action, plus one third of the remainder to her attorney, but if defendant paid the settlement in two checks, to plaintiff and to her attorney, her attorney agreed to waive recovery of the expenses the firm had advanced. (3) She released defendant from further liability for any claim arising from her injuries February 22, 2015, at 2101 49th Avenue, Queens County. The parties also agreed that plaintiff would provide a written release.

The attorneys and the court reviewed the terms with plaintiff to assure that she fully understood them, had consulted with anyone with whom she wanted to consult, was unimpaired by alcohol, drugs, or medication, and agreed to those terms. She repeatedly affirmed, under oath, that she was clear headed, did not want to consult further with anyone, understood how the $100,00.00 would be allocated and that it was for all the injuries she suffered from her fall February 22, 2015, and accepted the $100,00.00 in full settlement of those claims.

II. THE SETTLEMENT ON THE RECORD DECEMBER 5, 2019, IS BINDING AND ENFORCEABLE.

After plaintiff's attorney mailed a written release to plaintiff for her to sign, she refused to sign it and informed him that the $100,000.00 was not enough to compensate her for all the injuries she believed, after consulting with her physician, that she had incurred from her fall February 22, 2015, in

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particular a shoulder injury. Nevertheless, since the settlement agreement recited on the record December 5, 2019, transcribed into a writing, and memorialized by the court's signed order, includes all material terms, and those terms are definite, the agreement binds the parties as an enforceable stipulation of settlement. C.P.L.R. § 2104; Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589-90 (1999); Barclay v. Citibank, N.A., 136 A.D.3d 551, 551 (1st Dep't 2016); Argent Acquisitions, LLC v. First Church of Religious Science, 118 A.D.3d 441, 443-44 (1st Dep't 2014); Sterling Fifth Assoc. v. Carpentille Corp., Inc, 10 A.D.3d 282, 283 (1st Dep't 2004). When a party attests to a settlement agreement, it constitutes a binding contract subject to the principles of contract interpretation. Barclay v. Citibank, N.A., 136 A.D.3d at 551; Kowalchuk v. Stroup, 61 A.D.3d 118, 123 (1st Dep't 2009); Hotel Cameron, Inc. v. Purcell, 35 A.D.3d 153, 155 (1st Dep't 2006). Thus, as long as the recitation on the record included all essential terms of the agreement and expressed the parties' intent to settle this action, that record is binding and enforceable without any more formal written agreement, Trolman v. Trolman, Glaser & Lichtman, P.C., 114 A.D.3d 617, 618 (1st Dep't 2014); Options Group, Inc. v. Vyas, 91 A.D.3d 446, 447 (1st Dep't 2012); Kowalchuk v. Stroup, 61 A.D.3d at 123; Bed Bath & Beyond Inc. v. IBEX...