Tocker v. City of New York
Decision Date | 13 October 2005 |
Docket Number | 6640N. |
Citation | 2005 NY Slip Op 07581,802 N.Y.S.2d 147,22 A.D.3d 311 |
Parties | BARBARA TOCKER et al., Appellants, v. CITY OF NEW YORK et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Indisputably, plaintiffs' acceptance of the settlement offer was communicated by their counsel to defendants' counsel in a telephone call. Accordingly, the agreement to settle the action was not "one made between counsel in open court" (CPLR 2104), and thus is not enforceable (Matter of Dolgin Eldert Corp., 31 NY2d 1, 4-5, 8-11 [1972]). The requirement that a settlement agreement be made in "open court" does more than advance the goal of eliminating disputes about the critical terms of the agreement. In addition, it serves a cautionary function by tending to ensure that acceptance is considered and deliberate (id. at 10 []). Whatever indeterminacy there may be in the term "open court," that term cannot be construed to include a telephone call between counsel. Moreover, to recognize a telephone call between counsel as an "open court" proceeding would invite disputes about what was said and "would constitute but a precursor to renewed litigation" (id. at 11).
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