Singh v North Shore Univ. Hosp.

Singh v North Shore Univ. Hosp. 2010 NY Slip Op 06626 [76 AD3d 1004] September 21, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 27, 2010

Frank Singh, Appellant,
v
North Shore University Hospital et al., Respondents. Andrew Rosner, Nonparty Appellant.

—[*1] Andrew Rosner, Garden City, N.Y., nonparty appellant pro se, and for appellant.

Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success, N.Y. (Christopher Simone and Robert M. Ortiz of counsel), for respondents.

In an action, inter alia, to recover damages for wrongful death, the plaintiff and the nonparty, Andrew Rosner, appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered October 7, 2009, which granted the defendants' motion to vacate the parties' stipulation of settlement dated July 31, 2009, and for a new trial, and, sua sponte, directed Andrew Rosner, the plaintiff's attorney, to pay the defendants' trial costs and a sanction in the sum of $10,000 pursuant to 22 NYCRR 130-1.1, and referred the matter to the Grievance Committee.

Ordered that the appeal by the plaintiff from so much of the order as, sua sponte, directed the nonparty, Andrew Rosner, to pay certain costs and a sanction in the sum of $10,000 pursuant to 22 NYCRR 130-1.1, and referred the matter to the Grievance Committee is dismissed, as the plaintiff is not aggrieved by those portions of the order (see CPLR 5511); and it is further,

Ordered that the appeal by the nonparty, Andrew Rosner, from so much of the order as granted the defendants' motion to vacate the parties' stipulation of settlement, and for a new trial, is dismissed, as he is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that on the Court's own motion, the notice of appeal of the nonparty, Andrew Rosner, is deemed an application for leave to appeal from so much of the order as, sua sponte, directed him to pay certain costs and a sanction in the sum of $10,000 pursuant to 22 NYCRR 130-1.1, and referred the matter to the Grievance Committee, and leave to appeal from those portions of the order is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting the defendants' motion to vacate the parties' stipulation of settlement and for a new trial, and substituting therefor a provision denying the motion, and (2) by deleting the provision thereof, sua sponte, directing the nonparty, Andrew Rosner, to pay certain costs and a sanction in the sum of $10,000 pursuant to 22 NYCRR 130-1.1; as so modified, the order is affirmed, with one bill of costs payable to the plaintiff by the defendants, and the matter is remitted to the Supreme Court, [*2]Queens County, for a hearing, before a different Justice, on the issue of the imposition of a sanction upon the plaintiff's attorney.

During jury deliberations in this wrongful death case, the parties entered into settlement discussions. Before the jury rendered a verdict, the parties entered into a stipulation of settlement on the record. The Supreme Court then discharged the jury.

Apparently, when the exhibits available for the jury's review were collected, it was discovered that the plaintiff's attorney's "typewritten summation notes," which were not in evidence, had been mixed in with the plaintiff's decedent's medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial. The Supreme Court, which determined that the plaintiff's attorney "intentionally included" the notes "with" the medical records, granted the motion, vacated the stipulation of settlement, and ordered a new trial. Furthermore, the Supreme Court, sua sponte, directed the plaintiff's attorney to pay the defendants' "actual trial expenses" and a sanction in the sum of $10,000, and referred the matter to the Grievance Committee for the Eleventh Judicial District.

Stipulations of settlement, favored by the courts and not lightly set aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]), are contracts subject to principles of contract interpretation (see McCoy v Feinman, 99 NY2d 295, 302 [2002]). Only where there is cause sufficient to invalidate a contract, such as mistake or fraud, will a party be relieved from the consequences of a stipulation of settlement (see McCoy v Feinman, 99 NY2d at 302; Hallock v State of New York, 64 NY2d at 230).

Here, the defendants failed to establish a basis for the vacatur of the stipulation of settlement. The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff's attorney's typewritten summation notes had been made available to the jury. Accordingly, the Supreme Court improperly granted the defendants' motion to vacate the stipulation of settlement (cf. Masella v Leemilt's Flatbush Ave., 112 AD2d 1027, 1028 [1985]) and for a new trial, and improperly, sua sponte, directed the plaintiff's attorney to pay the defendants' trial costs.

Regarding the imposition of a sanction in the sum of $10,000 upon the plaintiff's attorney, the defendants did not request that relief. Furthermore, the plaintiff's attorney, who was never notified that the Supreme Court was considering granting that relief, was not afforded a reasonable opportunity to be heard on the issue of sanctions (see 22 NYCRR 130-1.1 [d]). Accordingly, the sanction must be vacated (see Matter of Ariola v DeLaura, 51 AD3d 1389 [2008]; Giblin v Anesthesiology Assoc., 171 AD2d 839, 840-841 [1991]; cf. Kamen v Diaz-Kamen, 40 AD3d 937 [2007]). However, since, on this record, we cannot conclude that a sanction is unwarranted (cf. 22 NYCRR 130-1.1 [c] [2]), we remit the matter to the Supreme Court, Queens County, for a hearing on that issue (see Giblin v Anesthesiology Assoc., 171 AD2d at 840-841), before a different Justice.

The appellants' remaining contentions either are without merit or have been rendered academic in light of our determination. Dillon, J.P., Covello, Angiolillo and Sgroi, JJ., concur.