Kleiner v Thyssen El. Co.

[*1] Kleiner v Thyssen El. Co. 2006 NY Slip Op 51272(U) [12 Misc 3d 136(A)] Decided on June 28, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and RIOS, JJ
2005-1247 K C.

Bela Kleiner, Respondent,

against

Thyssen Elevator Company a/k/a THYSSEN ELEVATOR GROUP NORTH and MAINCO ELEVATOR & ELECTRICAL CORP., Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Karen B. Rothenberg, J.), entered May 18, 2005. The order denied a motion by defendants to vacate the notice of trial or, in the alternative, to enforce a settlement and impose costs.

Order affirmed without costs.

In this personal injury action, on the date of trial, following discussions between attorneys for the parties, the court marked the matter "settled in the amount of $17,500.00" on a trial card and made a settlement notation on the court calendar. Several days later, plaintiff notified defendants that he rejected defendants' offer and [*2]
subsequently served a new notice of trial. Defendants contended that the case had been settled and moved to vacate plaintiff's notice of trial.

The court below properly found that its notations, on a trial card (index card) and on the court calendar, that the within matter had been settled in the amount of $17,500 did not constitute a formal record of an agreement in satisfaction of the open court requirements of CPLR 2104. There was no other notation or record of a purported settlement. A marking on a docket card, index card or in the court's personal file does not comply with the requirements of CPLR 2104 (see Gustaf v Fink, 285 AD2d 625 [2001]; Errico v Davidoff, 178 Misc 2d 378, 382 [1998]). In Berkeley Realty, LLC v Hicks (7 Misc 3d 130[A], 2005 NY Slip Op 50540[U] [App Term, 9th & 10th Jud Dists]), the landlord sought to enforce as a stipulation of settlement handwritten notes, initialed by the judge, on the back of the notice of petition. However, the court held that the notes were "insufficient to serve as adequate memorialization of an agreement entered into in open court' pursuant to CPLR 2104," because there was no evidence that terms of an alleged stipulation were recorded stenographically or entered into the court's minute book (see also Falcone v Khurana, 294 AD2d 535, 536 [2002]; Johnson v Four G's Truck Rental, 244 AD2d 319 [1997]; Zambrana v Memnon, 181 AD2d 730 [1992]). "At the very least, an oral agreement made in open court must be entered in the minute book of such a proceeding'" (Marine Midland Bank v Ramleh Enters., 202 AD2d 403, 404 [1994]; see generally Matter of Dolgin Eldert Corp., 31 NY2d 1, 5 [1972]). In view of the foregoing, the order denying defendants' motion is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 28, 2006