Tooker v Morrisey

Tooker v Morrisey 2006 NY Slip Op 10132 [35 AD3d 316] December 28, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Tracey Tooker, Respondent,
v
John L. Morrisey, Appellant.

—[*1]Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or about June 1, 2006, which, in an action for personal injuries sustained in a car accident, imposed a sanction of $1,200 on defendant's liability insurer when defendant's attorney appeared at a settlement conference without authority to settle, unanimously reversed, on the law, without costs, the sanction vacated and the matter remanded for a hearing.

We remand for a hearing since it does not appear that the insurer was given a reasonable opportunity to be heard on why it sent an attorney to a settlement conference who, as stated in the order on appeal, was "without any authority or knowledge of the case" (see 22 NYCRR 130-1.1 [d]; 130-2.1 [d]). The record, which consists only of the order on appeal imposing the sanction and the orders of this Court granting leave to appeal and staying imposition of the sanction, does not permit review of the insurer's excuse. We note defendant's brief, which represents that a settlement offer could not be made at the time of the settlement conference because plaintiff had not yet submitted to a medical examination by defendant's doctors. If such were the circumstances, the refusal to make a settlement offer would not appear to have been frivolous. Concur—Tom, J.P., Marlow, Williams, Catterson and Malone, JJ.