New York

I call that a bargain! — Stipulations of Settlement

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It has been said that a good settlement is one where both sides walk away equally unhappy.

In a corporate dissolution proceeding involving several hundred acres of land, both sides went to trial after years of litigation despite numerous attempts to resolve the case. Finally, at trial, the shareholders came to a settlement as to the disposition of the real estate owned by the corporation, in which the acreage would be sold off to a real estate investor.

The stipulation of settlement was read aloud on the record before the judge, with each side of shareholders having been represented by counsel. [See footnote 1] The judge allocuted each of the parties as to their consent to the stipulation.

Almost a year after reaching the settlement, one side moved to set aside the settlement, claiming that the other side had a conflict of interest in failing to disclose his relationship with a third party who was going to purchase the property owned by the corporation.

Stipulations of Settlement are favored under the law

In the seminal decision of Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984], the New York State Court of Appeals held that “Stipulations of settlement are favored by the courts and not lightly cast aside.” The statutory law embodied in Civil Practice Law and Rules [CPLR] 2104 upholds this longstanding case law. [See footnote 2]

Strict enforcement of stipulations not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and the integrity of the litigation process. Consequently, ‘only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation’ (id.; see, Hillcrest Realty Co. v Gottlieb, 234 A.D.2d 270, 271, 651 N.Y.S.2d 55, 56; Citibank v. Rathjen, 202 A.D.2d 235, 608 N.Y.S.2d 453, lv. dismissed 84 N.Y.2d 850, 617 N.Y.S.2d 139, 641 N.E.2d 160; Matter of Janet L. [Gillray L.], 200 A.D.2d 801, 803, 606 N.Y.S.2d 431, lv. dismissed in part, denied in part 83 N.Y.2d 941, 615 N.Y.S.2d 869, 639 N.E.2d 409).’ Robison v Borelli, 239 AD2d 656, 657 [3d Dept 1997].

Only ‘Good Cause’—fraud, collusion, mistake, duress or unconscionability—can set aside a stipulation of settlement

The motion to set aside the stipulation of settlement set forth a laundry list of allegations without any supporting proof (The affidavit simply alleged, “we are now very much concerned about fraud and collusion, as well as mistake or accident.”). Responding to the motion, Richard A. Klass, Esq., Your Court Street Lawyer, argued that no ‘good cause’ was proven and the motion should be denied.

In Myristica, LLC v Camp Myristica, Ltd., 201 AD3d 1078, 1080-81 [3d Dept 2022], the court declared that open court stipulations should be held to be iron clad and undisturbed absent good cause shown:

A stipulation of settlement placed on the record by counsel in open court is binding, all the more so when, as here, the parties contemporaneously confirm their acceptance on the record” (Birches at Schoharie, L.P. v. Schoharie Senior Gen. Partner LLC, 169 A.D.3d 1192, 1194, 94 N.Y.S.3d 412 [2019] [citations omitted]; see CPLR 2104). “To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties” (Birches at Schoharie, L.P. v. Schoharie Senior Gen. Partner LLC, 169 A.D.3d at 1194, 94 N.Y.S.3d 412 [internal quotation marks and citations omitted]). “When a stipulation meets these requirements, as it does here, courts should construe it as an independent contract subject to settled principles of contractual interpretation [and] … courts should not disturb a valid stipulation absent a showing of good cause such as fraud, collusion, mistake or duress or unless the agreement is unconscionable” (McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] [citations omitted]; see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984]; New York State Workers’ Compensation Bd. v. A & T Healthcare, Inc., 171 A.D.3d 1277, 1278, 101 N.Y.S.3d 212 [2019]; Liquori v. Liquori, 106 A.D.3d 1249, 1250, 966 N.Y.S.2d 543 [2013]).

It was urged that the motion did not set forth any cause to disturb the stipulation reached in open court. In React Serv., Inc. v Rindos, 243 AD2d 552, 552 [2d Dept 1997], the court specifically rejected this type of challenge to a stipulation of settlement, holding:

A party will be relieved from the consequences of a stipulation made during the course of litigation only where there is cause sufficient to invalidate a contract, such as fraud, duress, overreaching, or mistake (see, Hallock v. State of New York, supra; Matter of Frutiger, 29 N.Y.2d 143, 149–150, 324 N.Y.S.2d 36, 272 N.E.2d 543). Here, the plaintiff’s bare allegations of fraud, mutual mistake, etc., are insufficient to set aside the stipulation.” [emphasis added]

No complaining over a change of heart

It just became very obvious that the other side merely soured on the deal they struck – and decided to put up every obstacle to stop the corporate property from being sold.

It was requested that the judge take notice, as the court did in Stefanovich v Boisvert, 271 AD2d 727, 728 [3d Dept 2000], that the “defendants simply had a change of heart and decided that they no longer wished to comply with the terms of the stipulation or execute the previously agreed-upon boundary agreement. Neither defendants’ change of heart nor their belated attempt to argue a mistake … provides a valid basis for modifying the terms of the stipulation of settlement.” Based on the arguments set forth above, the judge denied the motion and upheld the stipulation of settlement.

Footnotes

[1]

This Court informed the parties of its binding effect by stating: “Recognizing that under CPLR 2104, a stipulation reached in open court is binding on the parties to this action. So, I’m going to first of all, with respect to counsel, ask counsel whether they agree and stipulate to the terms that have been placed on the record.”

[2]

CPLR 2104 provides: “An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.”

Richard A. Klass, Esq.
Your Court Street Lawyer

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2025 Richard A. Klass

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The death of a party divests the court of jurisdiction and stays the proceedings until…

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In Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1075-76 [2d Dept 2024], the court held that:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)[, and] any determination rendered without such substitution will generally be deemed a nullity” (Singer v. Riskin, 32 A.D.3d 839, 839–840, 821 N.Y.S.2d 120 [citations omitted]; see Hemmings v Rolling Frito–Lay Sales, LP, 220 A.D.3d 754, 757, 197 N.Y.S.3d 561; Vicari v. Kleinwaks, 157 A.D.3d 975, 976, 70 N.Y.S.3d 532). Here, the Supreme Court erred in considering the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them because the motions were made after Roe’s death and prior to any substitution of a personal representative of his estate (see id. § 1015; Matter of Einstoss’ Estate, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637; Neuman v. Neumann, 85 A.D.3d 1138, 1139, 926 N.Y.S.2d 632; Manto v. Cerbone, 71 A.D.3d 1099, 1100, 898 N.Y.S.2d 182). Accordingly, so much of the order dated January 8, 2020, as granted the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them must be vacated as a nullity (see CPLR 1015; Matter of Einstoss, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637; Neuman v. Neumann, 85 A.D.3d 1138, 926 N.Y.S.2d 632), and the appeal taken by the plaintiff Cheryl Lee from so much of the order dated September 30, 2020, as, upon reargument, adhered to the determination in the order dated January 8, 2020, granting those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action must be dismissed.

Furthermore, the death of a party also terminates an attorney’s authority to act on behalf of the deceased party (see Vicari v. Kleinwaks, 157 A.D.3d at 976, 70 N.Y.S.3d 532; Vapnersh v. Tabak, 131 A.D.3d 472, 474, 15 N.Y.S.3d 131; Lewis v. Kessler, 12 A.D.3d 421, 422, 784 N.Y.S.2d 574). Thus, Roe’s former attorneys lacked the authority to file either the cross-motion or this appeal on his behalf. Accordingly the appeal purportedly taken on Roe’s behalf must be dismissed (see Vicari v. Kleinwaks, 157 A.D.3d 975, 70 N.Y.S.3d 532).

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2025 Richard A. Klass

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Court affirmed the denial of the law firm’s motion to dismiss

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In Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d 840, 841-42 [2d Dept 2024], the court affirmed the denial of the law firm’s motion to dismiss the client’s malpractice lawsuit, holding:

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d 610, 611, 106 N.Y.S.3d 345 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Further, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d at 611, 106 N.Y.S.3d 345; see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth’s contention, “ ‘a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant’s representation’ ” (Shan Yun Lin v. Lau, 210 A.D.3d 817, 818, 178 N.Y.S.3d 538, quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 39, 827 N.Y.S.2d 231). Further, “ ‘a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice’ ” (id., quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d at 39, 827 N.Y.S.2d 231). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law (see Zi Kuo Zhang v. Lau, 210 A.D.3d 829, 831, 178 N.Y.S.3d 545; Shan Yun Lin v. Lau, 210 A.D.3d at 818, 178 N.Y.S.3d 538).

Richard A. Klass, Esq.
Your Court Street Lawyer

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2025 Richard A. Klass

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Not So…Quick on the Trigger – Interest awarded from the “earliest ascertainable date”

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A home improvement contractor sued a homeowner for breach of contract. The plaintiff-contractor alleged that it agreed to perform renovation and construction services for the defendant-homeowner, performed the labor and furnished all materials, and was not paid for the job. A jury trial was held where the jury determined that the defendant breached the contract and owed the plaintiff $40,000. Post-trial motions were made before the trial judge to challenge the jury verdict. The judge sustained the verdict. However, the judge’s order did not contain a directive to submit the judgment by a certain date.

Fixing the date for computing interest

Unfortunately, the trial judge did not fix the date from which interest on the verdict amount should be computed. Four years after the trial, the contractor retained Richard A. Klass, Esq., Your Court Street Lawyer, to request that the newly assigned judge fix the date for computing interest as per CPLR 5001.[See footnote 1] It was argued that interest should be awarded from the “earliest ascertainable date,” which, in this case, should be when the contractor completed the work on the homeowner’s property. See, Matter of Kummer, 93 AD2d 135, 184 [2d Dept 1983] (“predecision interest is to run from the earliest ascertainable date upon which the plaintiff’s cause of action existed.”); Ogletree, Deakins, Nash, Smoak & Stewart P.C. v Albany Steel Inc., 243 AD2d 877, 880 [3d Dept 1997] (“CPLR 5001(b) requires that prejudgment interest be computed from the earliest ascertainable date on which the prevailing party’s cause of action existed “and if that date cannot be ascertained with precision, the computation shall be from the earliest time at which it may be said the cause of action accrued” (Govern & McDowell v. McDowell & Walker, 75 A.D.2d 979, 980, 428 N.Y.S.2d 367).”).

There is a longstanding legal principle that, “[a] plaintiff in a breach of contract case is entitled to interest from the earliest ascertainable date the cause of action accrued (see, CPLR 5001[b]; M.C.D. Carbone v. Town of Bedford, 98 A.D.2d 714, 469 N.Y.S.2d 117). The award of interest is founded on the theory that there has been a deprivation of use of money or its equivalent and that the sole function of interest is to make whole the party aggrieved.” Kaiser v Fishman, 187 AD2d 623, 627 [2d Dept 1992]; see also, Kaiser v Fishman, 187 AD2d 623, 628 [2d Dept 1992] (“interest is simply the cost of having the use of another person’s money for a specified period [and] [i]t is intended to indemnify successful plaintiffs for the nonpayment of what is due them”); Sokolik v Pateman, 114 AD3d 839, 841 [2d Dept 2014] (“the Supreme Court erred in failing to award the plaintiff statutory prejudgment interest pursuant to CPLR 5001(a), which requires that such interest be recovered upon a sum awarded because of a breach of contract.”).

60-day rule under Uniform Rule 202.48 wasn’t “triggered”

There is a rule that requires a party to submit a proposed order or judgment to the judge for signature within 60 days after a decision has been made on a motion.[See footnote 2] In this case, the trial judge determined the post-trial motions regarding the jury verdict four years earlier.

The defendant argued that no prejudgment interest should be awarded since there was an unexplained 4-year delay in seeking to enter judgment. The plaintiff responded that, despite the passage of four years since the jury verdict, the application for entry of judgment was not untimely. See, Donovan v DiPietro, 195 AD2d 589, 590-91 [2d Dept 1993] (“Consequently, a jury verdict, or even a dispositive ruling from the bench during or after trial where the court does not direct submission of a paper for its signature, will not trigger the application of the rule [22 NYCRR 202.48] (see, Winckel v Atlantic Rentals & Sales, 195 AD2d 599). In cases such as this, entry of judgment on a verdict may be accomplished by way of a clerk’s judgment, as provided by statute (see, CPLR 5016).” See also, Funk v Barry, 89 NY2d 364, 366 [1996] (“Plaintiffs rely on precedent emanating from the First and Second Departments which holds generally that the 60–day time limit is not triggered unless the Judge’s decision directs that the judgment be submitted for the court’s signature.”)[See footnote 3]

Relying on the holding in Funk v Barry, the judge rejected the defendant’s argument regarding undue delay, finding it to be without merit. The judge noted that the defendant could have sought entry of judgment and not waited for the plaintiff to act.

Concerning prejudgment interest, the judge could not ascertain the date of breach of contract since it was unclear what date was proven at trial. However, the judge decided to fix prejudgment interest as of the date of commencement of the action since that was a determinable date for purposes of the statute.

Footnotes

[1]

Civil Practice Law and Rules (“CPLR”) 5001 provides:

§ 5001. Interest to verdict, report or decision.

(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.

(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.

(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded.

[2]

Section 202.48 Submission of orders, judgments and decrees for signature.

(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.

[3]

In Funk v Barry, 89 NY2d 364, 368 [1996], the NYS Court of Appeals held:

That section 202.48 is silent with respect to decisions that do not contain a submit or settle directive is not surprising, given that the rule serves primarily to address delays in judicial dispositions occasioned by a party’s failure to comply with a court’s directive to draw and submit a proposed order or judgment (see, Donovan v DiPietro, 195 AD2d 589, 590, supra). Thus, the 60-day rule logically applies only where further court involvement in the drafting process is contemplated before entry. Additionally, by its language, the 60-day time limitation does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court’s signature on a proposed judgment (see, Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac, op. cit., 1996 Pocket Part, § 250, at 49). Significantly, the Legislature has chosen not to place a time restriction on the completion of entry (see, CPLR 5016).*

* As a practical matter, there is little incentive to enact a specific time period within which a party must complete the entry process. First, “[f]ailure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including the inability to execute on the judgment (CPLR 5230) and the indefinite extension of the losing party’s time in which to take an appeal (CPLR 5513 [a])” (Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac § 250, at 377-378; § 418, at 637-638 [2d ed]). Additionally, a losing party who feels aggrieved by the prevailing party’s failure to seek entry may have the judgment entered and need not wait for the prevailing party to act (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5016, at 642). Finally, because the entry function generally involves action by the clerk with no further judicial oversight, there is little concern that delayed entry will tie up judicial resources.

Richard A. Klass, Esq.
Your Court Street Lawyer

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2025 Richard A. Klass

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Super Lawyers: 10th year for Richard Klass

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Badge showing Richard Klass has been selected for the New York Metro Super Lawyers List for 2024.     Badge showing Richard Klass has been selected for the New York Metro Super Lawyers List for the tenth year.

We are pleased to announce that Richard Klass has been selected to the 2024 New York Metro Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Richard A. Klass, Esq.
Your Court Street Lawyer

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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