Spisto v. Thompson , 331 N.Y.S.2d 818 ( 1972 )

In an action to recover damages for personal injury, in which a settlement had been entered into in open court, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 24, 1971, which denied his motion to vacate the settlement and restore the action to the Trial Calendar of the Supreme Court. Order reversed in the exercise of discretion, with $10 costs and disbursements, and motion granted, without costs; settlement vacated; and action directed to be restored to the Ready Day Calendar for trial. It appears that the plaintiff at no time consented to the settlement entered into by his trial counsel; nor was he or his attorney of record consulted with respect thereto. It further appears that, upon learning of the settlement, the plaintiff objected to it upon the ground that it was inadequate. Under such circumstances, a party is not bound by a settlement stipulation entered into by his trial counsel. (Bruder v. Schwartz, 260 App. Div. 1048; Silver v. Parkdale Bake Shop, 8 A D 2d 607; Fasano v. City of New York, 22 A D 2d 799). Shapiro, Gulotta, Christ and Benjamin, JJ., concur; Munder, Acting P. J., dissents and votes to affirm the order.