Vega v. Rios , 328 N.Y.S.2d 612 ( 1971 )

In a negligence action to recover damages for personal injuries, defendant Rios appeals from an order of the Supreme Court, Kings County, dated June 22, 1971, which denied his motion to sever the action as to him. Order reversed, without costs, and motion remanded to the Trial Term for further proceedings not inconsistent with the views herein set forth. At a pretrial conference on June 4, 1970, plaintiff’s action against appellant Rios and defendants Levy was marked settled before Mr. Justice Alter following protracted discussion and negotiation. Thereafter, plaintiffs became disenchanted .with the settlement and, through - their counsel, petitioned Justice Alter by letter to set the settlement aside. Justice Alter thereupon ordered the case restored to the calendar. Rios was not notified of this procedure. On April 15, 1971, he moved by order to show cause for a severance and a stay of the trial, which motion was denied by the order under review. This determination, in effect, confirmed Justice Alter’s restoration of the case for trial. This was error. The order must be reversed and the motion remanded for a hearing on notice to all parties to test the validity of the settlement. The instant record is not sufficiently complete for a proper determination. Hopkins, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.