Opinion
1568/12A, 4837, 4836.
10-31-2017
In Re TURNOVER PROCEEDING, Estate of Fay Solomon, Deceased. Bruce Solomon, et al., Petitioners–Respondents, v. Mae Marlow, Respondent–Appellant. In re Probate Proceeding, Will of Leon Hernesh, Deceased. Mae Marlow, Petitioner–Appellant, v. Bruce Solomon, et al., Respondents–Respondents, Office of the Attorney General, Respondent.
McCarthy Fingar LLP, White Plains (Robert H. Rosh of counsel), for appellant. Law Offices of Joanne Fanizza, P.A., Bay Shore (Joanne Fanizza of counsel), for Bruce Solomon and Joanne Fanizza, respondents. Radin and Kleinman, West Nyack (Abraham N. Kleinman of counsel), for Diskin Orphan Home of Israel, respondent.
McCarthy Fingar LLP, White Plains (Robert H. Rosh of counsel), for appellant.
Law Offices of Joanne Fanizza, P.A., Bay Shore (Joanne Fanizza of counsel), for Bruce Solomon and Joanne Fanizza, respondents.
Radin and Kleinman, West Nyack (Abraham N. Kleinman of counsel), for Diskin Orphan Home of Israel, respondent.
Order, Surrogate's Court, Bronx County (Nelida Malave–Gonzalez, S.), entered on or about August 11, 2016, which, inter alia, denied petitioner Mae Marlow's motion to vacate a May 7, 2016 written stipulation and an October 13, 2015 so-ordered stipulation, and granted respondent Bruce Solomon's cross motion to enforce said stipulations, unanimously affirmed. Order, same court and Justice, entered on or about September 13, 2016, which denied respondent Marlow's motion for the aforementioned requested relief, and granted petitioner Solomon's cross motion for the aforementioned requested relief, unanimously affirmed, without costs.
It is undisputed that the stipulations were in writing, signed by Marlow's counsel, entered into in open court, and that the later stipulation was so-ordered. Thus, they are enforceable pursuant to CPLR 2104 (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). Moreover, Marlow cloaked her attorney with apparent authority to negotiate and enter into the settlements in that the firm represented her in the litigation over many years, and she confirmed to the court attorney in telephone conversations, while negotiations were ongoing, that counsel was authorized to settle on the terms discussed (see Daniels v. Concourse Animal Hosp., 41 A.D.3d 284, 836 N.Y.S.2d 879 [1st Dept.2007] ).
The stipulations were sufficiently definite and were more than agreements to agree in that what was promised was easily ascertainable and the later stipulation expressly stated that no further documents were necessary to effectuate the settlement (see Yan's Video v. Hong Kong TV Video Programs, 133 A.D.2d 575, 578, 520 N.Y.S.2d 143 [1st Dept.1987] ). We have considered Marlow's remaining arguments and find them unavailing.
RICHTER, J.P., WEBBER, KERN, MOULTON, JJ., concur.