16 A.D.3d 133, 790 N.Y.S.2d 447, (N.Y.A.D. 1 Dept.,2005)
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Mortimer J. KATZEN, Plaintiff-Appellant,
v.
TWIN PINES FUEL CORP., et al., Defendants-Respondents.
March 3, 2005.
Background: Defendant moved for enforcement of parties' purported settlement agreement. The Supreme Court, Bronx County, Norma Ruiz, J., granted motion and plaintiff appealed.
Holding: The Supreme Court, Appellate Division, held that stipulation of settlement entered into between plaintiff's attorney and defendant was not binding on plaintiff.
Reversed.
[1] KeyCite Notes 
45 Attorney and Client
45II Retainer and Authority
45k101 Settlements, Compromises, and Releases
45k101(1) k. In General. Most Cited Cases
Stipulation of settlement entered into between plaintiff's attorney and defendant was not binding on plaintiff, where proposed settlement agreement was reached out of court and releases and stipulation of settlement were rejected and never signed by plaintiff. McKinney's CPLR 2104.
[2] KeyCite Notes
45 Attorney and Client
45II Retainer and Authority
45k101 Settlements, Compromises, and Releases
45k101(1) k. In General. Most Cited Cases
An attorney may not settle or compromise his or her client's case in the absence of consent by the client.
[3] KeyCite Notes
45 Attorney and Client
45II Retainer and Authority
45k101 Settlements, Compromises, and Releases
45k101(1) k. In General. Most Cited Cases
While a stipulation of settlement made by counsel in open court may bind his or her client even where it exceeds his or her actual authority, such is not the case where the proposed settlement agreement was reached out of court and the requisite releases and stipulation of settlement were rejected and never signed by plaintiff.
**448 (Cite as: 16 A.D.3d 133, 790 N.Y.S.2d 447, **448)
Szold & Brandwen, P.C., New York (Arthur R. Block of counsel), for respondents.
ANDRIAS, J.P., FRIEDMAN, SULLIVAN, NARDELLI, WILLIAMS, JJ.
[1]
*134 (Cite as: 16 A.D.3d 133, *134, 790 N.Y.S.2d 447, **448)Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered November 11, 2003, which granted defendants' motion for enforcement of the parties' purported settlement agreement and for sanctions only to the extent of declaring the settlement agreement valid and binding and directing plaintiff to execute and deliver the requisite releases and stipulation of discontinuance, unanimously reversed, on the law, without costs, and defendants' motion denied in all respects.
[2]
[3] It is well settled that an attorney may not settle or compromise his or her client's case in the absence of consent by the client ( Barrett v. Third Ave. R.R. Co., 45 N.Y. 628, 635 [1871]; see also Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 785 N.Y.S.2d 738, 819 N.E.2d 206 [2004] ). While a stipulation of settlement made by counsel in open court may bind his or her client even where it exceeds his or her actual authority ( Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ), such is not the case where, as here, the proposed settlement agreement was reached out of court and the requisite releases and stipulation of settlement were rejected and never signed by plaintiff. In such a case, the authority of an attorney to enter into settlement negotiations does not necessarily constitute authority to enter into a binding settlement under CPLR 2104 ( see Suslow v. Rush, 161 A.D.2d 235, 554 N.Y.S.2d 620 [1990] ). Thus, although plaintiff's prior attorney was retained to represent him in this matter and was directed to initiate settlement negotiations with defendants, it is apparent that plaintiff did not consent to the proposed settlement and there is nothing in the record to the contrary. If defendants had reason to believe that plaintiff had authorized his prior attorney to enter into the settlement, it was incumbent upon them to come forward with proof to that effect ( see Silver v. Parkdale Bake Shop, 8 A.D.2d 607, 607-608, 184 N.Y.S.2d 714 [1959] ).Copr. (C) West 2006 No Claim to Orig. U.S. Govt. Works N.Y.A.D. 1 Dept.,2005.
Katzen v. Twin Pines Fuel Corp.
16 A.D.3d 133, 790 N.Y.S.2d 447, 2005 N.Y. Slip Op. 01625
