COWELL, ERNEST, MTR. OF

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

571 CA 15-01429 PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.

IN THE MATTER OF THE ESTATE OF ERNEST EARL COWELL, DECEASED. ------------------------------------------------ MEMORANDUM AND ORDER ERNEST COWELL, FORMER ADMINISTRATOR OF THE ESTATE OF ERNEST EARL COWELL, DECEASED, APPELLANT;

TERRI ROSS, ALLEGANY COUNTY TREASURER, PUBLIC ADMINISTRATOR, GLORIA LOUK, ET AL., RESPONDENTS.

GERALD J. VELLA, SPRINGVILLE, FOR APPELLANT.

ALAN L. SPEARS, ALLEGANY, FOR RESPONDENTS GLORIA LOUK, WILLIAM H. COWELL, ALFRED COWELL, NORMAN COWELL, VIVIAN CARPENTER, DARLENE HALL, DIANE MORRISON, KATHY WHITE, CHARLES GEE AND PATRICIA LIBKA.

Appeal from an order of the Surrogate’s Court, Allegany County (Thomas P. Brown, S.), entered October 15, 2014. The order denied the motion of appellant to confirm his bid for an oil and gas lease.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Ernest Cowell (appellant), the former administrator and one of the beneficiaries of the estate of Ernest Earl Cowell (decedent), appeals from an order that denied his motion to confirm his bid to purchase a certain oil and gas lease owned by the estate. The bidding process was purportedly settled by stipulation of settlement, the terms of which were placed on the record before Surrogate’s Court. Appellant tendered a bid to purchase the lease pursuant to his understanding of the stipulation. The Surrogate, however, held that there was no enforceable stipulation. We affirm.

Contrary to appellant’s contention, the stipulation of settlement placed on the record in open court did not bind the parties. First, the stipulation of settlement did not meet the requirement of being “definite and complete” inasmuch as some of its material terms were not finalized in open court (Town of Warwick v Black Bear Campgrounds, 95 AD3d 1002, 1003; see Diarassouba v Urban, 71 AD3d 51, 55-56, lv dismissed 15 NY3d 741). Second, and perhaps more important, the “[stipulation of] settlement was expressly conditioned” on counsel for all parties obtaining client approval in writing (Rivera v Triple M. Roofing Corp., 116 AD2d 561, 561; see Matter of Brooks v Brooks, 255 AD2d 382, 382; Batties v Solis, 171 AD2d 529, 530; cf. Bella Vista

-2- 571 CA 15-01429

Dev. Corp. v Estate of Birnbaum, 85 AD2d 891, 891-892, lv dismissed 55 NY2d 608, 55 NY2d 1038). The record establishes, however, that appellant himself never fulfilled that condition by giving his approval in writing.

Entered: June 17, 2016 Frances E. Cafarell Clerk of the Court