Puder v. Buechel ( 2005 )

Justice LONG, J.,

dissenting.

I would affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Kestin’s thorough and thoughtful opinion. Like the Appellate Division I would hold that, in the unique circumstances presented, the settlement of the matrimonial case was not an impediment to Mrs. Buechel’s malpractice action against Ms. Puder.

I agree with the Court that, as a matter of policy, a party in Mrs. Buechel’s position should in the future be required to pursue an enforcement motion to disposition. I am simply not willing to apply that policy to this case in which it will effectuate an unfair outcome.

Here, Mrs. Bueehel stated unequivocally on the record that she was settling on the condition that the agreement would not prejudice her in pursuing the malpractice case against Puder. The very experienced trial judge must have thought that the reservation she expressed would be honored, otherwise he would have advised her that she had no right to any future action against Puder and that her settlement was final for all purposes. If that had occurred, Mrs. Buechel would likely have rethought her position and may have opted for a different course. To hold her to the settlement while denying her right against Puder at this late stage is simply not an outcome that I consider just. Therefore I dissent.

Justice ALBIN joins in the opinion.

For reversal and remandment — Chief Justice PORITZ, and Justices LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO — 5.

For dissent — Justices LONG, and ALBIN — 2.