Henderson v. Weston's Inc.

— Appeal from an order of the Supreme court at Special Term (Harvey, J.), entered August 15, 1983 in St. Lawrence County, which granted plaintiff’s motion for summary judgment. 11 The issue here is whether the trial court properly granted summary judgment to plaintiff, based upon a stipulation of settlement reached by the parties, where defense counsel carried on settlement negotiations and agreed to the settlement by phone rather than allow the case in 998 question to proceed to inquest upon defendant’s default. We conclude that, under the circumstances of this case, plaintiff was improperly awarded summary judgment. 11 At the time the alleged settlement stipulation was made, plaintiff was 81 years old. A trial preference of the case had been ordered in January, 1983. The case was given preference at the May Trial Term of Supreme Court in St. Lawrence County and posted on the Day Calendar as the second case. On May 24, 1983, the case was jury-ordered for May 25. Defendant’s trial counsel was unable to attend and had the case adjourned by his office by telephone. The matter was again jury-ordered for June 2, 1983. However, defendant’s trial counsel again caused the court to be advised by telephone that no attorney was available to try the case. Plaintiff had been at the courthouse ready for trial on each occasion. 11 On June 2, 1983, the court called the attorney of record for defendant and advised him that his trial counsel had not appeared for trial. The court further stated that unless the case were tried that afternoon, it would be settled or an inquest ordered. The case was marked settled when defendant’s counsel of record agreed over the phone to settle for $10,000. Thereafter, defendant refused to execute an order of settlement and plaintiff proceeded by motion for enforcement of the purported settlement. 11 We conclude that no legally binding stipulation was entered into by the parties or their attorneys. The phone conversations which led to the court’s marking of the case as settled were not conducted in open court as required by CPLR 2104 and are not binding on defendant (Matter of Dolgin Eldert Corp., 31 NY2d 1). It is unfortunate that the elderly plaintiff and her counsel were disadvantaged by the failure of defense counsel to attend the court as he was required to do. When the matter was ordered for a day certain for trial and defense counsel failed to appear, the matter was in default and the court should have proceeded to an inquest. H Order reversed, on the law, without costs, and motion denied. Mahoney, P. J., Kane and Mikoll, JJ., concur. Yesawich, Jr., and Weiss, JJ., dissent and vote to affirm in the following memorandum by Yesawich, Jr., J.