Public Administrator v. Bankers Trust Co.

182 A.D.2d 592

Opinion

Order, Supreme Court, New York County (Burton S. Sherman, J.), entered December 18, 1990, which, upon the basis of an open court settlement, directed that the action be discontinued, with prejudice, as against defendant Bankers Trust Company, with leave to commence a plenary action on the settlement agreement should the parties be so advised, unanimously modified, on the law, the facts, and in the exercise of discretion, to dismiss the action as against defendant Bankers Trust Company, and otherwise affirmed, without costs.

An oral stipulation entered "between counsel in open court” is excepted from the subscribed writing requirement for stipulations set forth in CPLR 2104 (see generally, Matter of Dolgin Eldert Corp., 31 NY2d 1). The in-court oral stipulation made here during trial evidences plaintiffs unconditional agreement, through authorized counsel, to settle as against defendant Bankers Trust for $160,000 (supra; see, Hallock v State of New York, 64 NY2d 224, 232). We modify only to dismiss plaintiffs complaint, mindful that leave has been granted to commence a plenary action challenging the settlement (see, Urso v Panish, 94 AD2d 701). Concur — Sullivan, J. P., Carro, Ross, Asch and Smith, JJ.