Bella Vista Development Corp. v. Birnbaum

85 A.D.2d 891, 446 N.Y.S.2d 753, 1981 N.Y. App. Div. LEXIS 16728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1981
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: This is an appeal by the estate of Bernard P. Birnbaum (Estate), doing business as Prime Real Estate, and Jay Birnbaum, nephew of the executor of the Estate, from an order of Special Term enforcing a stipulation of settlement entered into in open court on July 7, 1981 by the Estate and other parties to a real estate transaction and directing the Estate to execute certain documents in accordance therewith. We agree with Special Term’s conclusion that the stipulation was binding and not subject to approval by the clients (see Owens v Lombardi, 41 AD2d 438). The record establishes that the attorneys intended the stipulation to be binding; that they did not state that it was subject to client approval; and that Jay Birnbaum, who was present in court at the time of the stipulation and agreed thereto, was authorized to bind the Estate. We reject appellants’ argument that the additional matters they raised subsequent to the stipulation by letter dated July 28, 1981, were within the three issues upon which final agreement was reserved. The proposed modifications would materially alter the terms of the stipulation and the “Nondisturbance, Attornment and Subordination Agreement” which had already been approved by appellants’ attorney. There are no factual questions presented and Special Term properly declined to hold a hearing. (Appeal from order of Erie Supreme Court, McGowan, J. — enforce stipulation.) Present — Hancock, Jr., J. P., Callahan, Doerr, Moule and Schnepp, JJ.