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McGovern v. Urena12/9/2003
This opinion is uncorrected and will not be published in the Official Reports.
Plaintiff commenced this personal injury action in 1997. Due to plaintiff's failure to file a note of issue, the case was dismissed in Supreme Court in 2001, but the dismissal was subsequently vacated and the case transferred to Civil Court. In October 2002, plaintiff's attorney settled the instant six-year-old negligence action, on the day the action had been marked final for trial. Plaintiff, however, was not present since her attorney had been unable to contact her. Rather than allowing the action to be dismissed, plaintiff's attorney chose to settle the matter for a sum that plaintiff had, allegedly, previously refused to accept in 2000. Thereafter, plaintiff moved to vacate the settlement and restore the case to the calendar, stating that her attorney had no authority to enter into the settlement. Defendant opposed the motion and by order entered March 6, 2003, the court below granted said motion.
Plaintiff's attorney clearly had the apparent authority to act on her behalf (see e.g. Hallock v State of New York, 64 NY2d 224, 231 ). Inasmuch as there is no dispute between the parties as to the terms of the settlement, and given the fact that defendant was misled and relied upon the settlement, we find that the settlement is binding upon the parties even though it was not in a writing subscribed by plaintiff or her attorney, or reduced to the form of an order and entered (see Lowe v Steinman, 284 AD2d 506, 507 ; Conlon v Concord Pools, 170 AD2d 754 ; Smith v Lefrak Orgr, 142 AD2d 725 cf. CPLR 2104).
Decision Date: December 09, 2003
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