Opinion
June 3, 1996
Appeal from the Supreme Court, Queens County (Kitzes, J.).
Ordered that the judgment is reversed, without costs or disbursements, the order dated February 23, 1995, is vacated, the motion is granted, the purported settlement order is vacated, and the matter is remitted to the Supreme Court, Queens County, for restoration to the trial calendar.
We agree with the appellant that there is insufficient evidence that a final settlement agreement was ever reached in open court ( see, CPLR 2104). The notation in the court's personal file, which stated that the appellant offered $100,000 in settlement of the action does not establish that a settlement was reached and, in any event, was insufficient to satisfy the open court requirement of CPLR 2104 ( see, Zambrana v. Memnon, 181 A.D.2d 730). Moreover, the parties were in dispute as to whether the settlement offer of the appellant's counsel was conditioned upon his client's approval. Therefore, the court erred in enforcing the purported settlement agreement ( see, Venuti v. Booth Mem. Med. Ctr., 204 A.D.2d 715; Marine Midland Bank v. Ramleh Enters., 202 A.D.2d 403). Under the circumstances of this case, we decline to award costs on this appeal to the appellant ( see, CPLR 8101). Thompson, J.P., Altman, Goldstein and McGinity, JJ., concur.