Hallock v. State ( 1983 )

Mahoney, P. J. (concurring in part and dissenting 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 motion term presided over by Justice Pennock, before whom the stipulation was entered upon the record, with the instruction that he hold an evidentiary hearing testing plaintiffs’ attorney’s authorization to settle the lawsuit (see Teitelbaum Holdings v Gold, 48 NY2d 51 [plenary action is unnecessary and enforcement of stipulation to be determined on motion]). As pointed out by the majority," the trial court clearly erred when it denied plaintiffs’ counsel the right to read portions of plaintiffs’ deposition before trial which were relevant to portions of the same examination read into evidence by defense counsel (CPLR 3117, subds [b], [d]). The error was grossly prejudicial since it was directly related to the sole issue to be resolved, i.e., the authority of plaintiffs’ counsel to settle the case by a stipulation of discontinuance. Finally, since the sole issue that was tried below was the sufficiency of the stipulation, the majority’s holding would have the effect of returning the matter to the Trial Calendar for the entry of a declaratory judgment in favor of plaintiffs declaring the stipulation a nullity. This position is bottomed not merely on the evidentiary error discussed above, but also on equitable considerations (i.e., the case is now 13 years old, plaintiffs have pursued their claim assiduously, the State destroyed the farmability of the land before it offered to return it to plaintiffs and plaintiffs were forced to pay substantial legal fees because óf the protracted litigation) which, in my view;, are not germane to the issue of plaintiffs’ attorney’s authorization. I also cannot agree with the majority’s position that plaintiffs’ attorney’s testimony at the examination before trial is in conformity with plaintiffs’ position. In my view, his testimony is equivocal and is without the requisite degree of objectivity that should be present to justify reversal of a judgment in favor of a defendant resisting a declaratory judgment action seeking to set aside a stipulation of discontinuance, a device much encouraged in the law. I would reverse the judgment and remand the case for a hearing to test the sufficiency of plaintiffs’ attorney’s authorization.