Opinion
2004712 WC
Decided April 13, 2005.
Appeal by landlord from an order of the City Court of Yonkers, Westchester County (R. Cerrato, J.), entered April 6, 2004, granting tenant's motion to vacate a stipulation of settlement and restoring the matter to the trial calendar.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
In this holdover summary proceeding, landlord and tenant entered into a purported stipulation of settlement. Upon tenant's motion, the court below vacated the alleged stipulation, noting in its decision and order the contentions of the parties as to its validity but providing no analysis of its own.
We hold that the purported stipulation is unenforceable, as it is not in the form of a writing subscribed by the parties or their attorneys, an order entered by the court, or an agreement made between counsel in open court pursuant to CPLR 2104.
CPLR 2104 provides, in pertinent part:
"An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel 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. . . ."
In the present matter, the only record of the alleged stipulation is in the form of handwritten notes, without the parties' signatures but initialed by the judge, which appear on the back of the notice of petition. These notes state, in their entirety:
"T's share of rent — $243 is waived commencing January thru April, LL to accept Sect 8 portion of rental payment. RCC"
This notation does not itself indicate that in return for this waiver, landlord was to receive possession of the premises.
To the left of this note, there are several calendar notations, and beneath these, a stamped indication, "Warrant 4/30/03 Day Stay Judgment Poss 0 Money." The underlined portions are handwritten. It is unclear whether the judge or other court personnel made these notes; they appear to be made with the same pen used to note the waiver of rent. It is additionally noted that a warrant of eviction was issued on July 10, 2003.
It is this combination of handwritten notations, made across the boilerplate text of the back of a notice of petition, that landlord seeks to enforce as a stipulation of settlement.
"Although stipulations of settlement are generally favored by the courts . . ., an oral stipulation will not be enforced unless its terms are definite, and it is made in 'open court'" ( Collazo v. New York City Health Hosps. Corp., 103 AD2d 789, 790 [citation omitted]). The present alleged stipulation fails on both counts. The only evidence of its terms is the judge's handwritten notes, made on the back of the notice of petition, and there is no indication in the body of these notes of what, if any, agreement tenant purportedly made to a judgment of possession in favor of landlord. There is no evidence that the terms of the alleged stipulation were recorded stenographically or that they were entered in the court's minute book. For these reasons, the judge's notes are insufficient to serve as adequate memorialization of an agreement entered into in "open court" pursuant to CPLR 2104.
The term "open court" refers to "a judicial proceeding in a court . . . whether held in the court house, a courtroom, or any place else, so long as it is, in an institutional sense, a court convened . . . to do judicial business. Typically, in a court of record an open court has in attendance a clerk who makes entries of judicial events in a docket, register, or minute book, and in modern times there is a court reporter, who makes a record of all the proceedings" ( Matter of Dolgin Eldert Corp., 31 NY2d 1, 4-5). Oral stipulations made under such circumstances are enforceable because of "the formality, publicity, and solemnity of an open court proceeding [which] marked it as different from the preliminary atmosphere attached to informal conferences elsewhere. Moreover, the proceedings in open court would always have some formal entries, if only in the clerk's minutes, to memorialize the critical litigation events" ( id. at 10; see Matter of Narsu v. Polsinelli, 74 AD2d 952, 953). Entries recorded in the minute book of the clerk of the court have thus been held sufficiently formal to be enforceable under the "open court" exception to the requirement of a writing ( see e.g. Deal v. Meenan Oil Co., 153 AD2d 665; Graffeo v. Brenes, 85 AD2d 656).
In the present matter, landlord seeks to enforce a purported stipulation of settlement allegedly memorialized in notations by the trial judge written across the boilerplate text on the back of the notice of petition. Notations made on, or taken from, sources other than formal records of proceedings kept in the course of a court's business have been consistently disfavored under the CPLR 2104 "open court" exception ( see e.g. Matter of Narsu, 74 AD2d at 953 ["The exception of oral agreements in open court from the operation of the Statute of Frauds is based upon the underlying consideration that such agreements are memorialized by an authentic writing in the form of a court record"]; see also Bartley v. Federal Express Corp., 179 Misc 2d 164 [Sup Ct, Queens County 1998] and cases cited therein).
Thus, for example, a notation that a case had been settled for a certain sum, made by a judge on an eight-by-five index card used to communicate between the part and the clerk's office, was held insufficient because "the index cards are too informal to be considered evidence of a stipulation entered into in 'open court'" and are "too vague and informal to provide notice to the parties or to the public as to the terms of an agreement" ( Errico v. Davidoff, 178 Misc 2d 378, 382 [Civ Ct, Kings County 1998]). A notation "made by the court in its personal file" at a pretrial settlement conference was similarly held not to "constitute a sufficient or adequate memorialization of the terms of settlement to satisfy the 'open court' requirements of CPLR 2104" ( Zambrana v. Memnon, 181 AD2d 730). Even "when considered in conjunction with the subsequent computer entries made by the office of the clerk of the Supreme Court pursuant to some later notification . . . by the Judge," notations made by a trial judge on a court file "do not constitute a sufficient memorialization of the terms of the alleged settlement . . . to satisfy the open court requirement . . ." ( Gustaf v. Fink, 285 AD2d 625, 626).
As noted above, the formality of the surrounding proceedings must also be taken into account, as the atmosphere of formal court proceedings and the care with which records of such proceedings are kept tend to ensure the accuracy with which oral stipulations are memorialized ( see Matter of Dolgin Eldert Corp., 31 NY2d 1, supra; Matter of Narsu, 74 AD2d at 953). The Court of Appeals noted in Matter of Dolgin Eldert Corp. its view that "[i]t is critical that . . . court proceedings in particular, not be embroiled in inchoate, unprovable arrangements, in which the court or its officers play a part" ( 31 NY2d at 11). It would seem particularly critical that matters involving the right to possession of one's home not become so embroiled.
As the purported stipulation in the present matter does not meet the CPLR 2104 requirements to establish that it was made in open court, it is unenforceable and the merits of tenant's defense of mistake need not be reached ( see e.g. Bonnette v. Long Is. Coll. Hosp., 307 AD2d 902).
Although tenant has not cross-appealed from the order, we note in passing that upon the present state of the record, it appears that the petition must ultimately be dismissed, as the administrative determination of DHCR, affirmed on administrative appeal, that landlord had failed to serve a proper renewal lease upon tenant, has preclusive effect in the current proceeding ( see London Terrace Gardens v. Grabina, 3 Misc 3d 128[A], 2004 NY Slip Op 50346[U] [App Term, 1st Dept 2004]; Lorcorp, Inc. v. Burke, 185 Misc 2d 720 [App Term, 2d 11th Jud Dists 2000]; Parisi v. Hines, 131 Misc 2d 582 [Civ Ct, NY County 1986], affd 134 Misc 2d 20 [App Term, 1st Dept 1986], affd without opn 134 AD2d 32). While landlord argues on appeal that the City Court should retain jurisdiction, apparently to the exclusion of DHCR, landlord submitted to DHCR's jurisdiction, and did not attempt either to stay the DHCR proceeding while it was pending or to bring an article 78 proceeding to challenge its findings ( see London Terrace Gardens, 3 Misc 3d at 128[A], 2004 NY Slip Op 50346[U]).