Crummell v Pinkerton

[*1] Crummell v Pinkerton 2009 NY Slip Op 51336(U) [24 Misc 3d 129(A)] Decided on June 23, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1373 Q C.

Clarence Crummell, Appellant, -and-

against

Thomas Pinkerton, AVIS RENT A CAR SYSTEM, INC. and PV HOLDING CORP., Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered July 1, 2008. The order granted a motion by defendants Avis Rent A Car System, Inc. and PV Holding Corp., and a cross motion by defendant Thomas Pinkerton, seeking, inter alia, to enforce a stipulation of settlement.

Order modified by providing that the motion by defendants Avis Rent A Car System, Inc. and PV Holding Corp., and the cross motion by defendant Thomas Pinkerton, seeking, inter alia, to enforce a stipulation of settlement are granted to the extent of setting the matter down for a hearing; as so modified, affirmed without costs.

In this action to recover for injuries sustained in an automobile accident, the Civil Court granted a motion by defendants Avis Rent A Car System, Inc. and PV Holding
Corp., and a cross motion by defendant Thomas Pinkerton, seeking, inter alia, to enforce a stipulation of settlement. The issue presented on this appeal is whether the attorney who entered into the stipulation on behalf of plaintiff had actual or apparent authority to do so (see Hallock v State of New York, 64 NY2d 224 [1984]). In light of the conflicting assertions regarding this issue, an evidentiary hearing is required to resolve it. If it shall be determined following the hearing that plaintiff's attorney did not have the requisite authority, the stipulation must be set aside and any judgment entered thereon vacated (Nash v Y & T Distribs., 207 AD2d 779 [1994]; Matter of Koss Co-Graphics v Cohen, 166 AD2d 649 [1990]; Slavin v Polyak, 99 AD2d 466 [1984]).

Accordingly, the matter is remanded to the Civil Court for a determination de novo of the motion and cross motion following a hearing.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 23, 2009