United States Surgical Corp. v. Pignataro

157 A.D.2d 547, 549 N.Y.S.2d 732, 1990 N.Y. App. Div. LEXIS 380

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1990
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Eve Preminger, J.), entered August 25, 1988, which, inter alia, denied respondent’s cross motion seeking to enforce a settlement agreement pursuant to CPLR 2104, is unanimously affirmed, with costs.

Respondent-appellant’s assertion of an oral settlement made over the telephone on February 12, 1988 is inadequate to constitute a binding agreement under CPLR 2104 as the purported agreement was not made in open court, subscribed by the party to be bound or his attorney, or reduced to the form of an order and entered (Matter of Dolgin Eldert Corp., 31 NY2d 1). Moreover, his claim of a binding agreement on the basis of petitioner’s March 2, 1988 written communication is also insufficient since the substantive terms thereof were to take effect only upon execution of the agreement, and the only signed writing was the attached cover letter which clearly characterized the substantive term as "a draft of a proposed settlement agreement” (Brause v Goldman, 10 AD2d 328, affd 9 NY2d 620). We have considered appellant’s other contentions and find them to be without merit. Concur— Kupferman, J. P., Asch, Milonas, Wallach and Rubin, JJ.