Margolis v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Margolis v. New York City Transit Authority

233 A.D.2d 483, 650 N.Y.S.2d 30, 1996 N.Y. App. Div. LEXIS 12667

Appellate Division of the Supreme Court of the State of New York·Decided November 25, 1996·Published·Cited by 9 cases

Opinion

—In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County, dated September 19, 1995, which granted the plaintiffs pro se motion to vacate a stipulation of settlement and restore the action to the trial calendar.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contentions, the court did not err in granting the plaintiff’s motion to set aside the alleged settlement negotiated on his behalf by his attorney. The negotiations were not transcribed and the stipulation was never spread upon the record in open court (see, Matter of Dolgin Eldert Corp., 31 NY2d 1; Marine Midland Bank v Ramleh Enters., 202 AD2d 403; Kushner v Mollin, 144 AD2d 649). Therefore, to be effective the stipulation was required to have been signed by the parties (see, CPLR 2104). The plaintiff refused to sign a release in accordance with the negotiated terms. Accordingly, the court properly determined that the purported agreement "did not amount to a valid stipulation” (Klein v Mount Sinai Hosp., 61 NY2d 865, 866) and did not preclude the plaintiff from seeking to restore the matter to the trial calendar (see, Rivera v Triple M Roofing Corp., 116 AD2d 561). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.

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—In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County, dated September 19, 1995, which granted the plaintiffs pro se motion to vacate a stipulation of settlement and restore the action to the trial calendar.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contentions, the court did not err in granting the plaintiff’s motion to set aside the alleged settlement negotiated on his behalf by his attorney. The negotiations were not transcribed and the stipulation was never spread upon the record in open court (see, Matter of Dolgin Eldert Corp., 31 NY2d 1; Marine Midland Bank v Ramleh Enters., 202 AD2d 403; Kushner v Mollin, 144 AD2d 649). Therefore, to be effective the stipulation was required to have been signed by the parties (see, CPLR 2104). The plaintiff refused to sign a release in accordance with the negotiated terms. Accordingly, the court properly determined that the purported agreement "did not amount to a valid stipulation” (Klein v Mount Sinai Hosp., 61 NY2d 865, 866) and did not preclude the plaintiff from seeking to restore the matter to the trial calendar (see, Rivera v Triple M Roofing Corp., 116 AD2d 561). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.

Margolis v. New York City Transit Authority, 233 A.D.2d 483, 650 N.Y.S.2d 30, 1996 N.Y. App. Div. LEXIS 12667 (N.Y. Ct. App. 1996).

Pincite

233 A.D.2d 483 (Margolis v. New York City Transit Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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