Opinion
2018–00641 Index No. 18101/12
03-06-2019
Nazema AMERALLY, Respondent, v. LIBERTY KING PRODUCE, INC., etc., Appellant.
McManus Ateshoglou Aiello & Apostolakos, PLLC, New York, N.Y. (Christopher D. Skoczen of counsel), for appellant. Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for respondent.
McManus Ateshoglou Aiello & Apostolakos, PLLC, New York, N.Y. (Christopher D. Skoczen of counsel), for appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law and the facts, with costs, the defendant's motion to enforce the settlement agreement is granted, and the plaintiff's cross motion to vacate the settlement agreement is denied.
The plaintiff allegedly was injured when she tripped and fell over a hose outside of a store owned by the defendant. The plaintiff thereafter commenced this action to recover damages for personal injuries. While the action was pending, the attorneys for both parties participated in mediation and signed an agreement settling the matter for the sum of $ 150,000 (hereinafter the settlement agreement). The defendant sent the plaintiff's attorney closing documents to execute and return and, when the plaintiff failed to execute and return the documents, the defendant moved to enforce the settlement agreement. The plaintiff, by a new attorney, cross-moved to vacate the settlement agreement on the ground that she never gave her former attorney authority to settle the action for the sum of $ 150,000, and she was unaware a settlement had been reached until several weeks after the mediation. After a hearing, the Supreme Court denied the defendant's motion and granted the plaintiff's cross motion. The defendant appeals.
"Stipulations of settlement are favored by the courts and not lightly cast aside" ( Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; see Lopez v. Muttana, 144 A.D.3d 871, 871, 41 N.Y.S.3d 113 ; Yan Ping Liang v. Wei Xuan Gao, 118 A.D.3d 696, 697, 986 N.Y.S.2d 857 ). A settlement agreement that is not made in open court "is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered" ( CPLR 2104 ). Here, the settlement agreement complied with the requirements of CPLR 2104, as it was in writing and subscribed to by the attorneys for both parties.
"A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation" ( Davidson v. Metropolitan Tr. Auth., 44 A.D.3d 819, 819, 844 N.Y.S.2d 359 ; see Hallock v. State of New York, 64 N.Y.2d at 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ). Here, the plaintiff is bound by the settlement agreement signed by her former attorney. Even if the attorney lacked actual authority to enter into the settlement agreement on the plaintiff's behalf, a finding that he had the apparent authority to do so is warranted by the facts (see Anghel v. Utica Mut. Ins. Co., 164 A.D.3d 1294, 82 N.Y.S.3d 541 ). The plaintiff's former attorney participated in the mediation with the plaintiff's knowledge and consent, and represented to the mediator and to defense counsel that a representative from his office had spoken with the plaintiff and obtained authority to settle the action for the sum of $ 150,000. Additionally, the law firm that employed the attorney who participated in the mediation was the plaintiff's attorney of record in the action, and attorneys from that law firm signed and verified the summons and complaint and signed and certified a note of issue filed in the action (see Chae Shin Oh v. Jeannot, 160 A.D.3d 701, 702–703, 74 N.Y.S.3d 73 ; Stoll v. Port Auth. of N.Y. & N.J., 268 A.D.2d 379, 379–380, 701 N.Y.S.2d 430 ).
"The party seeking to vacate or set aside a stipulation of settlement has the burden of establishing good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, or overreaching, or that the terms of the stipulation were unconscionable, in order to be relieved from the consequences of the stipulation" ( Pieter v. Polin, 148 A.D.3d 1191, 1192, 50 N.Y.S.3d 498 ). Here, the plaintiff failed to establish that the terms of the settlement agreement were so unfair or one-sided as to "shock the conscience and confound the judgment of any person of common sense" ( O'Hanlon v. O'Hanlon, 114 A.D.3d 915, 916, 981 N.Y.S.2d 141 [internal quotation marks omitted] ), or that it was based on a mistake made despite the exercise of ordinary care (see Yorker v. Daniel Yorker, Ltd., 12 A.D.3d 506, 506, 783 N.Y.S.2d 857 ).
Accordingly, the Supreme Court should have granted the defendant's motion to enforce the settlement agreement, and denied the plaintiff's cross motion to vacate the settlement agreement.
AUSTIN, J.P., MALTESE, CONNOLLY and CHRISTOPHER, JJ., concur.