Opinion
February 19, 1974
In a negligence action to recover damages for personal injuries, etc., which was settled by stipulation upon the record, made during the course of trial, plaintiff's attorney appeals from an order of the Supreme Court, Queens County, dated October 1, 1973, which (1) denied her motion to compel defendant's insurance carrier to pay the amount of the settlement, in accordance with the stipulation, by three separate checks payable respectively to plaintiffs, a named lienor, and plaintiffs' attorney, but (2) granted her leave to move to restore the case to the trial calendar. Order reversed, without costs, and motion granted. However, the operation of this determination is stayed until 30 days after entry of the order to be made hereon, to afford plaintiffs an opportunity to institute a plenary suit to set the settlement aside, if they be so advised; and, if such plenary suit be commenced and prosecuted with due diligence, this stay, that is, of the delivery of the checks, shall continue until the determination of such suit. Special Term's memorandum decision stated in part that at the time of the settlement of the case the court and plaintiffs were not advised as to the amount of the debt due to the lienor and that therefore it would be inequitable and unfair to plaintiffs to grant the motion. However, the settlement constituted a contract which could not be set aside without a plenary suit ( Schweber v. Berger, 27 A.D.2d 840; Finlayson v. Kellner Car Limousine Serv., 30 A.D.2d 676; Dennison v. Maltz, 35 Misc.2d 33). Shapiro, Acting P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.