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The Rogak Report: 10 July 2006 ** Settlements - Vacating **

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  • Lawrence Rogak
    SETTLEMENT MADE AT COURT CONFERENCE, BUT NOT SET DOWN IN WRITTEN AGREEMENT, IS NOT ENFORCEABLE Darelle Andre-Long v. Verizon Corp. (2d DEPT 2006)(Index No.
    Message 1 of 1 , Jul 9, 2006
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      SETTLEMENT MADE AT COURT CONFERENCE, BUT NOT SET DOWN IN WRITTEN
      AGREEMENT, IS NOT ENFORCEABLE

      Darelle Andre-Long v. Verizon Corp. (2d DEPT 2006)(Index No. 324/01)

      In this personal injury suit, plaintiff appealed from an order of the
      Supreme Court, Kings County, dated July 20, 2005, which denied her
      motion to vacate a purported settlement of the action, to restore the
      action to the trial calendar, and for leave to serve an amended bill
      of particulars. The Appellate Division reversed.

      "The purported settlement of this action between the parties during a
      trial conference is not enforceable since it was never reduced to
      writing and signed by the parties, nor made in 'open court' (CPLR
      2104). The notation allegedly appearing on the Trial Judge's court
      calendar that this case was 'settled' does not constitute a
      sufficient memorialization of the terms of the alleged settlement so
      as to satisfy the open-court requirement of CPLR 2104."

      "Since there is no proof in the record that an enforceable settlement
      was ever reached, the Supreme Court improvidently exercised its
      discretion in denying that branch of the plaintiff's motion which was
      to restore the action to the trial calendar."

      Comment: A word to the wise -- get it in writing. If the attorneys
      had "put it on the record" it would be enforceable. That means, call
      in a court reporter and have both sides state the terms of the
      settlement and indicate their agreement to it. Otherwise, write it
      out and sign it.

      Larry Rogak
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