Citation Numbers: 31 A.D.3d 353, 819 N.Y.S.2d 56
Filed Date: 7/5/2006
Status: Precedential
Modified Date: 1/12/2022
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and those branches of the motion which were to vacate the purported settlement, to restore the action to the trial calendar, and for leave to amend the bill of particulars are granted.
The purported settlement of this action between the parties during a trial conference is not enforceable since it was never reduced to writing and signed by the parties, nor made in “open court” (CPLR 2104). The notation allegedly appearing on the trial judge’s court calendar that this case was “settled” does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104 (see Falcone v Khurana, 294 AD2d 535 [2002]; Gustaf v Fink, 285 AD2d 625 [2001]; Johnson v Four G’s Truck Rental, 244 AD2d 319 [1997]; Zambrana v Memnon, 181 AD2d 730 [1992]).
Since there is no proof in the record that an enforceable settlement was ever reached, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs motion which was to restore the action to the trial calendar (see Johnson v Four G’s Truck Rental, supra; Margolis v New York City Tr. Auth., 233 AD2d 483 [1996]).
Furthermore, that branch of the appellant’s motion which was for leave to serve an amended bill of particulars alleging new injuries should have been granted. Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice