Category: [App Div 2d Dept]

CPLR R. 3212(a) Timing: Piggy-back Motions

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action

CPLR § 2211 Application for order; when motion made

Lennard v Khan, 2010 NY Slip Op 00482 (App. Div., 2nd, 2010)

The plaintiff's independent medical examination occurred on December 4, 2008, thus requiring submission of any summary judgment motions by January 27, 2009, the earliest of the possible deadlines.

By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing, LLC (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The respondents served the plaintiff's counsel with the summary judgment motion on January 23, 2009, and filed the motion with the court on February 11, 2009.

The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the same relief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filed them with the court on March 2, 2009.

***The plaintiff opposed both motions on the ground that they were untimely, but did not address the movants' arguments that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the respondents argued that their motion was timely under CPLR 2211 because it had been served on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009, the Supreme Court granted the respondents' motion as timely and since it was unopposed on the merits. The court also denied the separate motion of Prescod and Klass as untimely. These appeals ensued.

"A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561). Given that the respondents' motion was served on the plaintiff's counsel by mail on January 23, 2009, four days before the January 27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion was timely.

Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on "nearly identical" grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O'Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the "nearly identical" nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).

Since the respondents' motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants' contentions regarding serious injury, the separate motion should have been granted.

Here, the order required that a summary judgment motion be made by a certain date.  Watch out for orders or stipulations that require a motion to be filed by a certain date.

Further food for thought( h/t Damin Toell): Piquette v. City of New York, 4 A.D.3d 402 (App. Div., 2nd, 2004):

Although the municipal defendants' motion to set aside the jury verdict was made on insufficient notice (see CPLR 2214 [b]), the plaintiffs were not prejudiced by this procedural irregularity, and waived their objection to it by opposing the motion on the merits (see Henry v Gutenplan, 197 AD2d 608 [1993]; Adler v Gordon, 243 AD2d 365 [1997]; Matter of Venner, 235 AD2d 805 [1997]; Todd v Gull Contr. Co., 22 AD2d 904 [1964]). Accordingly, the Supreme Court erred in refusing to determine the motion on its merits.

 

NYCRR 202.27; 22 NYCRR 202.21

22 NYCRR 202.27 Defaults

22 NYCRR 202.21 Note of issue and certificate of readiness

Donnelly v Treeline Cos., 66 AD3d 563 (App. Div., 1st, 2009)

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) is governed by CPLR 5015. Such a motion must be made within one year of service of a copy of the dismissal order with notice of entry, and be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action. Where the dismissal order has never been served with notice of entry, there is no time limit on making a motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay, short of laches, is not a consideration (Acevedo v Navarro, 22 AD3d 391 [2005]).

Plaintiff demonstrates both a reasonable excuse and the existence of a meritorious cause of action. The fact that none of the parties appeared for the scheduled court conference in July 2002 indicates that plaintiff's default was reasonable and likely attributable to the court's failure [*2]to notify everyone about the conference, whose date is not found in any prior conference order. Plaintiff's former attorney averred that his office was never notified of the conference or informed of the dismissal. Lack of receipt of notice can be a valid excuse for failure to appear at a conference (see Latha Rest. Corp. v Tower Ins. Co., 285 AD2d 437 [2001]).

Plaintiff has also established a meritorious cause of action. Indeed, on a prior appeal in 2004 (13 AD3d 143 [2004]), we affirmed the existence of numerous triable issues of fact concerning the liability of defendants Treeline and Commercial, and also of third-party defendant Republic.

Defendants contend that plaintiff's delay in moving to vacate the section 202.27 dismissal amounted to laches. While defendants were not apparently prejudiced in the two years immediately after the dismissal, during which they continued actively litigating, the case did thereafter remain inactive for a three-year period until plaintiff's motion to vacate the dismissal in 2007. This delay, though lengthy, was not unreasonable. In any event, defendants have not alleged prejudice from this delay, other than in conclusory fashion.

Figueroa v Sanchez, 2009 NY Slip Op 08881 (App. Div., 1st, 2009)

Due to his incarceration, plaintiff defaulted by failing to appear at a preliminary conference (22 NYCRR 202.27). The only remedy for plaintiff's default in these circumstances is not an appeal, but rather a motion in Supreme Court to vacate the default (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the present posture of the case, there is no appealable order for this Court to review. Finally, we note that plaintiff claims that he made numerous attempts to communicate with the court about his appearances that were not addressed.

Gaskin v Ilowitz, 2010 NY Slip Op 00097 (App. Div., 2nd, 2010)

The plaintiff's certificate of readiness incorrectly stated that the bill of particulars, physical examinations, exchange of medical reports, and any discovery proceedings known to be necessary were waived. In addition, it falsely declared that preliminary proceedings had been completed and that the case was ready for trial. Because of these misstatements of material facts, that branch of the defendant's motion which was to vacate the note of issue was properly granted (Brown v Astoria Fed. Sav., 51 AD3d 961, 962; see 22 NYCRR 202.21[e]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497; Spilky v TRW, Inc., 225 AD2d 539, 540).

Ferraro v North Babylon Union Free School Dist., 2010 NY Slip Op 00095 (App. Div., 2nd, 2010)

A motion for vacatur of the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where "a material fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR 202.21[e]). To satisfy the requirement of "good cause," the party seeking vacatur must "demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice" (White v Mazella-White, 60 AD3d 1047, 1049, quoting Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794). Here, the plaintiffs neither proffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . . unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049). Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was to vacate the note of issue and certificate of readiness.

Singh v City of New York, 2009 NY Slip Op 09646 (App. Div., 2nd, 2009)

[T]hat branch of the defendants' motion which, in effect, was to compel the plaintiffs to respond to additional discovery demands regarding the immigration status of the plaintiff Harminder Singh is denied. While the Supreme Court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing which require additional pretrial proceedings to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Futersak v Brinen, 265 AD2d 452), here, the defendants failed to establish any such unusual or unanticipated circumstances that would warrant the additional post-note-of-issue discovery they sought (see 22 NYCRR 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135; Futersak v Brinen, 265 AD2d 452). The defendants also failed to establish that the denial of their request would cause them actual, substantial prejudice (see Audiovox Corp. v Benyamini, 265 AD2d at 139).

The bold is mine.

CPLR § 203(f)

CPLR § 203(f) Claim in amended pleading

Fisher v Giuca, 2010 NY Slip Op 00218 (App. Div., 2nd, 2010)

Furthermore, the court properly denied the plaintiffs’ application for leave to serve an amended complaint. The allegations in the original complaint did not fairly apprise Cleary of “the occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]). Thus, the new theories in the proposed amended complaint do not relate back to the original complaint, and are time-barred (see Panaccione v Acher, 30 AD3d 989, 990; Hyacinthe v Edwards, 10 AD3d 629, 631).

CPLR R. 3212: It’s all about the timing

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(f) Facts unavailable to opposing party

Alexandru v Pappas, 2009 NY Slip Op 08978 (App. Div., 2nd, 2009)

However, to the extent that the plaintiff's motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212[a]). Thus, that branch of the motion was properly denied.

Joson v G & S Realty 1, LLC, 2009 NY Slip Op 09620 (App. Div., 2nd, 2009)

Generally, unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with "leave of court on good cause shown" (CPLR 3212[a]). This "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652). A trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129). Here, the trial court providently exercised its discretion in denying the motion of the defendant TPD Construction Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it because it failed to timely file its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d at 652; Gonzalez v 98 Mag Leasing Corp., 95 NY2d at 129).

Fontanez v Lazarus, 2009 NY Slip Op 09373 (App. Div., 1st, 2009)

In a stipulation so-ordered by the court, any motions by defendants for summary judgment were to be "served and filed" by November 21, 2007, and that while appellant served its motion on November 21, it did not file it until November 30. Accordingly, appellant was required, but failed, to show good cause for the late filing (Corchado v City of New York, 64 AD3d 429 [2009]).

Some courts have specific rules as to when motions can be filed.  Assume that in this case there was such a rule and because of that rule, the motion could not be filed within the timeline.  Whether or not the movant has a reasonable excuse may depend on duration between service and filing of the motion. 

North Fork Preserve, Inc. v Kaplan, 2009 NY Slip Op 09006 (App. Div., 2nd, 2009)

After extensive discovery, the defendants moved for summary judgment dismissing the remaining claims in the amended complaint. Although the defendants had made two previous motions for summary judgment, the third motion did not violate the general proscription against successive motions for summary judgment since it was based on deposition testimony and numerous documents that had been elicited after the prior motions were denied (see Auffermann v Distl, 56 AD3d 502; Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218; Staib v City of New York, 289 AD2d 560).

***

Finally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion for summary judgment, since the alleged new evidence was improperly submitted for the first time in the plaintiffs' reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co. Inc., 35 AD3d 535; Adler v Suffolk County Water Auth., 306 AD2d 229). In any event, the plaintiffs did not offer a reasonable justification for their failure to present this evidence on the prior motion (see CPLR 2221[e]; Williams v Nassau County Med. Ctr., 37 AD3d 594).

Compare this decision with Matapos Tech. Ltd. v Compania Andina de Comercio Ltda1, 2009 NY Slip Op 09713 (App. Div., 1st, 2009) ("In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]). ) and with McMullin v Walker, 2009 NY Slip Op 09438 (App. Div., 2nd, 2009) (The "Final Narrative" medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the "Final Narrative" report, in a surreply entitled, "Supplemental Affirmation in Opposition." This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804)).

Hsing Hsung Chuang v Whitehouse Condominium, 2009 NY Slip Op 09375 (App. Div., 1st, 2009)

To the extent plaintiffs argue that discovery is needed, they failed to demonstrate either that the required evidence is within defendants' exclusive knowledge or that they "at least made some attempt to discover facts at variance with [defendants'] proof" (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [2007]).

The bold is mine.

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1.  The decision also has an important discussion of CPLR § 2309(c)

You Can’t Be Forced to Give What You Don’t Have (Discovery)

I can't begin to tell you how often I see attorneys demanding that the other side produce items that don't exist.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Gottfried v Maizel, 2009 NY Slip Op 09619 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in only partially granting the plaintiff's motion to compel disclosure. The defendant could not be compelled to produce records, documents, or information that were not in his possession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656; Maffai v County of Suffolk, 36 AD3d 765; Sagiv v Gamache, 26 AD3d 368, 369), or that were privileged (see Logue v Velez, 92 NY2d 13). Contrary to the plaintiff's arguments, the Preliminary Conference Order dated February 13, 2008, did not preclude the court from reviewing the propriety of his discovery demands or the adequacy of the defendant's response to those demands.

The bold is mine.

False Start–CPLR § 304

CPLR § 304. Method of commencing action or special proceeding

Goldenberg v Westchester County Health Care Corp., 2009 NY Slip Op 09616 (App. Div., 2nd, 2009) [Edit: 4/7/11. Affirmed by Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced (see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer (see CPLR 3211[e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211(e), since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211(b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense. [*2]

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action (see generally Rybka v New York City Health & Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it (see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).

The bold is mine.

CPLR R. 3211(a)(7) and Punitive Damages

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Fragrancenet.com, Inc. v Fragrancex.com, Inc., 2009 NY Slip Op 09613 (App. Div., 2nd, 2009)

[T]he Supreme Court properly, inter alia, granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the plaintiff's claim for punitive damages.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335). Here, the allegations in the complaint do not support the imposition of punitive damages.

Too Little Too Late CPLR R. 3404

CPLR R. 3404 Dismissal of abandoned cases

Bornstein v Clearview Props., Inc., 2009 NY Slip Op 09602 (App. Div., 2nd, 2009)

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419; Basetti v Nour, 287 AD2d 126, 131). The plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419).

Here, the plaintiff failed to meet this burden. The unsubstantiated excuse proffered by a former attorney in counsel's law firm regarding health issues in his family and his own depression was insufficient to excuse the more than three-year delay in moving to restore the action after the plaintiff's prior motion to restore was denied, as there was no showing that these problems persisted throughout the period in question (see Bray v Thor Steel & Welding, 275 AD2d 912, 912-913; Knight v City of New York, 193 AD2d 720). Further, in light of the plaintiff's inactivity regarding the action during the delay in moving to restore the action to the calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Furniture Vil. v [*2]Schoenberger, 283 AD2d 607; Cruz v Volkswagen of Am., 277 AD2d 340, 341). Moreover, since more than nine years have passed between the time of the acts complained of and the date of the motion under review, the defendants would be prejudiced if the action was restored to the trial calendar (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871; Kalyuskin v Rudisel, 306 AD2d 246, 247). Accordingly, the plaintiff's renewed motion to vacate the dismissal of the action and to restore the action to the trial calendar should have been denied.

Fun fact: CPLR R. 3404 is not applicable to the Civil Court, at least in the Second Department.

Don’t Count Your Stips Until They’ve Hatched (CPLR R. 2104)

While I've been out in beautiful sunny Ohio, this case has been making the rounds.  It was first noticed by John Hochfelder and followed up by the Turk.  Oh, right, the case.

Diarassouba v Urban, 2009 NY Slip Op 09420 (App. Div., 2nd, 2009)

While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests.

"Mr. Jordan: Could I put my request on the record?

"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

"Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

"The Court: Because I said what I have to say. Let's proceed."


Viuker was silent throughout this whole exchange.

The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years.

After hearing the jury verdict, Jordan asserted that the purported stipulation of settlement was invalid on the ground that the court never permitted the settlement terms to go on the record. Jordan further posited that the settlement was invalid on the ground that the defense never consented to the settlement, but rather, was completely silent throughout Jordan's requests to put the settlement on the record.

"The Court: Now [that the verdict has been taken], Mr. Jordan, what is it that you would like to say?

"Mr. Jordan: Now, your Honor, what I will report for the record is that I attempted to talk to the Court about settlement and I watched the defense attorney, while he heard that there was a quick verdict, go outside twice. I heard him come in, and while he was in this courtroom he did nothing to second my application to this Court to put a settlement on the record and the Court did nothing to ask the parties whether there's a settlement on the record. As far as I know, the caselaw is there has to be a settlement on the record to be binding. So, at this point, the position of the plaintiff is that there is not [a] settlement, and there was no settlement."

Thereafter, by order dated March 28, 2008, the Supreme Court granted the defendants' motion to enforce the purported stipulation of settlement. The court determined that the settlement had been made in open court, with the judge on the bench and the court reporter and court clerk in attendance. As such, the court found that it was not necessary for the stipulation to have been placed on the record. The plaintiff appeals. We reverse.

CPLR 2104, the law governing settlements, sets forth that,

"An agreement between parties or their attorneys relating to any matter in an [*3]action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the County Clerk."

Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.

Make no mistake about it, this decision is important.  Read the entire decision, then read it again.  Then, go ahead and take a look at Velazquez v St. Barnabas Hosp., 2009 NY Slip Op 09315 (Ct. App. 2009), where the Court of Appeals held:

The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed [*2]confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006]).