Smith v. Lefrak Organization, Inc.

• Decision Date: 25 July 1988
• Citation: 142 A.D.2d 725,531 N.Y.S.2d 305
• Parties: Angela SMITH, Plaintiff, Demonthenes Napolean Relaford, Respondent, v. LEFRAK ORGANIZATION, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 305

531 N.Y.S.2d 305

142 A.D.2d 725

Angela SMITH, Plaintiff Demonthenes Napolean Relaford, Respondent, v. LEFRAK ORGANIZATION, INC., et al., Appellants.

Supreme Court, Appellate Division Second Department.

July 25, 1988.

James G. Barron, New York City (Anthony J. McNulty, of counsel), for appellants.

Fischer & Burstein, P.C., New York City (Stanley H. Fischer, Lyle A. Bakst and Harry Burstein, on the brief), for respondent.

Before RUBIN, J.P., and KOOPER, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants appeal from so much of a judgment of the Supreme Court, Queens County (Leviss, J), entered November 19, 1987, as adjudged that the plaintiff Demonthenes Napolean Relaford recover of the defendants the principal sum of $95,000 pursuant to their agreement to settle the action. 137 Misc.2d 228, 520 N.Y.S.2d 325 (1987). The appeal brings up for review an order of the same court dated November 10, 1987, which, inter alia, directed the clerk of the Supreme Court, Queens County, to enter judgment in favor of Relaford in the principal amount of $95,000 (see, CPLR 5501[a][1] ).

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Generally, stipulations of settlement must be in writing and subscribed by the parties, reduced to the form of an order and entered, or made between counsel in open court (see, CPLR 2104). However, where there is no dispute between the parties as to the terms of the agreement, the courts will refuse to permit the use of this rule against a party who has been misled or deceived by the oral agreement to his detriment or who has relied upon it ( see, La Marque v. North Shore Univ. Hosp., 120 A.D.2d 572, 502 N.Y.S.2d 219; Van Ness v. Rite-Aid of N.Y., 129 A.D.2d 931, 514 N.Y.S.2d 570; Rhulen Agency v. Gramercy Brokerage, 106 A.D.2d 725, 484 N.Y.S.2d 156; Hansen v. Prudential Lines, 118 Misc.2d 568, 461 N.Y.S.2d 670). In the case at bar, the Supreme Court properly determined that the defendants were estopped from relying upon CPLR 2104 to set aside the parties' oral settlement agreement.

According to the affirmation of the defendants' attorney and the affidavit of the litigation specialist employed by the defendants' insurance company, the parties agreed to settle the plaintiff Relaford's action for $95,000 on December 2, 1986. In reliance thereon, Relaford signed a general release and stipulation of discontinuance and sent these documents to the defendants' attorney on December 4, 1986, to be held in escrow pending receipt of the settlement proceeds. Moreover, Relaford consented to a judgment and warrant of eviction from his residence, and purchased a limousine for his new occupation, in reliance upon receiving the settlement proceeds to pay for these commitments. However, ...