Barrett v Carela

Barrett v Carela 2006 NY Slip Op 07680 [33 AD3d 830] October 24, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

James A. Barrett, as Guardian ad Litem for James A. Barrett, Jr., et al., Respondents,
v
Miguel Carela et al., Appellants, et al., Defendant.

—[*1]

In an action to recover damages for personal injuries, the defendants Miguel Carela and Pinnacle Freight Lines, Inc., appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 10, 2005, as granted that branch of the plaintiffs' motion which was, in effect, for leave to enter judgment pursuant to a purported settlement of the action, and (2) from an order of the same court dated August 8, 2005, which denied their motion for leave to reargue and renew their opposition to that branch of the plaintiffs' motion.

Ordered that the appeal from the order dated August 8, 2005, is dismissed; and it is further,

Ordered that the order dated February 10, 2005, is reversed insofar as appealed from and that branch of the motion which was, in effect, for leave to enter judgment is denied; and it is further,

Ordered that one bill of costs is awarded to appellants payable by the plaintiffs.

The evidence submitted by the plaintiffs in support of that branch of their motion which was, in effect, for leave to enter judgment pursuant to a purported settlement of this action did not include a signed writing incorporating all material terms of the purported settlement, and thus failed to demonstrate that the parties entered into a binding settlement agreement (see CPLR 2104; [*2]Bonnette v Long Is. Coll. Hosp., 3 NY3d 281 [2004]). Accordingly, the Supreme Court erred in granting that branch of the plaintiffs' motion and authorizing the entry of a judgment at this juncture.

In light of our determination, we need not reach the appellants' remaining contentions.

The appeal from the order dated August 8, 2005, must be dismissed, as no appeal lies from so much of the order as denied that branch of the appellants' motion which was for leave to reargue, and that portion of the order which denied that branch of the appellants' motion which was for leave to renew their opposition to that branch of the plaintiffs' motion which was, in effect, for leave to enter judgment has been rendered academic by our determination of the appeal from the order dated February 10, 2005. Prudenti, P.J., Mastro, Fisher and Lunn, JJ., concur.