Deal v. Meenan Oil Co.

Lawrence, J.,

dissents and votes to affirm the order appealed from, with costs, with the following memorandum: On March 11, 1987, a conference was held before Justice McCabe and the case file was thereafter marked "settled” for $20,000. The entry in the clerk’s minute book noted, in pertinent part, that "It was reported to the Court that the * * * case [was] settled before trial for the total sum of $20,000.00. No stipulation was put on the record.”

Although the record indicates that Justice McCabe was aware of the notation in the clerk’s minute book with respect to the purported settlement, he declined to bind the plaintiffs to the settlement, finding that "the formal requisites were not met” (see also, Collazo v New York City Health & Hosps. Corp., 103 AD2d 789). Apparently Justice McCabe concluded that the entry in the minute book did not memoralize a proceeding had in "open court” (CPLR 2104). As we noted in Graffeo v Brenes (85 AD2d 656, 658): "In the majority of cases, settlements reached informally in a Judge’s chambers or elsewhere, although not subject to specific performance (Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-10, supra), are voluntarily carried out by the parties. Difficulty arises only where the informal nature of the process creates doubt as to whether an agreement to settle was ever reached, or as to its terms, or where one party simply does not wish to carry out such an informal settlement. CPLR 2104 mandates the manner in which settlements must be consummated so as to be enforceable. Its purpose is to provide a means whereby agreements reached informally can be transcribed and made binding. In the absence of the requisite formality, alleged settlements, such as the one in the instant case, cannot bar further prosecution of the plaintiffis’] action.”

Under the circumstances herein, I find no basis for disturbing Justice McCabe’s determination.