98 A.D.2d 856 | N.Y. App. Div. | 1983
Lead Opinion
— Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered September 21, 1981 in Schoharie County, upon a decision of'the court at Trial Term (Weiss, J.), without a jury. This matter has been previously before us. Plaintiffs’ land was appropriated on August 14,1969 by the Power Authority of the State of New York through the State of New York. Plaintiffs challenged the taking and sought a declaratory judgment, contending that the State exceeded the power of eminent domain by taking the land in fee. A denial of cross motions for summary judgment was upheld by this court (39 AD2d 172) and the Court of Appeals (32 NY2d 599), and the matter was remitted for a trial on the merits in Supreme Court in Schoharie County. The trial was to be held on April 22, 1975. On that day, a stipulation was put on the record which provided for a discontinuance of the action along with another action pending between the parties in the Court of Claims in exchange for a reconveyance of the property to plaintiffs and retention of $7,500 previously paid to them by the State. Plaintiff Seeley Phillips was present on that date but plaintiff Carlton Hallock was absent due to illness, resulting in his hospitalization that day. By order entered August 9, 1976, the stipulation was set aside by Special Term on plaintiffs’ motion. That order was reversed by this court (58 AD2d 67) on procedural grounds. We held that a plenary action was necessary to set aside a discontinuance of any action and the matter was remitted for a trial. A trial of this newly commenced action to set aside the stipulation of settlement was held in October, 1980. A judgment was rendered granting specific performance of the agreement to defendants and dismissing plaintiffs’ causes of action. Defendant Quartararo and Quartararo, Esqs., former counsel for plaintiffs was dropped as a party on consent of all litigants. This appeal by plaintiffs ensued. In their complaint, plaintiffs had alleged that they never consented to, approved, confirmed or ratified the settlement; that their attorney acted without their authority in reaching the settlement; and that they did not realize that the proceedings of April 22, 1975 finally disposed of the action. They sought rescission of the settlement ánd a trial on the merits. Defendants generally denied the allegations of the complaint and interposed affirmative defenses of failure to state a cause of action, ratification of the settlement by plaintiffs and laches. In its findings, the trial court found no partnership existed between plaintiffs so that neither could bind the other. The court held that a stipulation was made by counsel in open court in conformity with CPLR 2104; that mutual mistake was not proven; that the stipulation finally disposed of the proceedings and that the attorney, Quartararo, had plaintiffs’ authority to represent them and to negotiate for them in court. The court found that plaintiff Phillips gave tacit approval to the settlement by his presence in court and that plaintiff Hallock gave Quartararo unqualified authority to act for him and, as a result, the stipulated settlement was binding on plaintiff Hallock as well. Plaintiffs challenge the findings of fact as not being supported by evidence and also raise what we deem a meritorious argument as to some evidentiary rulings of the court. During the course of the trial, in several instances, defense counsel read into evidence selected excerpts from plaintiffs’ depositions before trial. Plaintiffs’ counsel then sought to read other portions thereof pursuant to CPLR 3117 (subds [b], [d]), which were offered as being explanatory and relevant and which he contended indicated that plaintiffs consistently maintained that their attorney reached a settlement in direct contradiction of their explicit orders. The trial court disallowed such request on the rationale that excerpts from an examination before trial can be used on-cross-examination for impeachment but not on direct or redirect examination. We hold that this ruling contravenes CPLR 3117 (subd [b]), which entitles a party to introduce into
Concurrence in Part
I cannot agree with the majority’s conclusion that the judgment directing specific performance by plaintiffs of the stipulation of settlement should be reversed, the stipulation vacated and the matter restored to the Trial Calendar. Since a fundamental evidentiary error was committed by the trial court, an error that cannot be disregarded as nonprejudicial, the matter should be remanded to a
Dissenting Opinion
I would affirm. A stipulation of settlement which meets the open court requirements of CPLR 2104 cannot be set aside except for reasons that would invalidate a contract (see Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 446). Here, the ground advanced for setting aside the stipulation, plaintiffs’ claimed mistake, is not even remotely borne out by the evidence. Plaintiff Phillips, who was not only present in chambers when the settlement was entered into but also had his personal attorney by his side, never uttered a word of discontent with, nor had his personal attorney register any objection to, the terms of the settlement arrived at by defendant Quartararo, the trial counsel. Given these circumstances, Phillips is foreclosed from challenging the settlement. Plaintiff Hallock also cloaked attorney Quartararo with apparent, if not real, authority to settle and, therefore, he too should be barred. Quartararo had represented these plaintiffs for five years throughout the entire action; he had conducted examinations before trial, negotiated with the State on plaintiffs’ behalf and prepared for trial. Although plaintiffs maintain he exceeded his settlement authority with regard to the particular terms of the final settlement, it is uncontroverted that he did indeed have authority to negotiate on their behalf. These established facts, considered in conjunction with the principle that an attorney participating in a pretrial conference must have authority to negotiate binding settlements and his appearance constitutes apparent and implied authority to obligate his client unless expressly qualified (Di Russo v Grant, 28 AD2d 847), requires a finding that this settlement was conclusive on the parties. To decide otherwise invites destruction of the process of open-court settlements, for every such settlement would be liable to subsequent rescission by the simple expedient of a litigant’s self-serving assertion, joined in by his attorney and previously uncommunicated to either the court or others involved in the settlement, that the litigant