Phillips v. Pamper Decorating Service

We agree with the appellant that there is insufficient evidence that a final settlement agreement was ever reached in open court (see, CPLR 2104). The notation in the court’s personal file, which stated that the appellant offered $100,000 in settlement of the action does not establish that a settlement was reached and, in any event, was insufficient to satisfy the open court requirement of CPLR 2104 (see, Zambrana v Memnon, 181 AD2d 730). Moreover, the parties were in dispute as to whether the settlement offer of the appellant’s counsel was conditioned upon his client’s approval. Therefore, the court erred in enforcing the purported settlement agreement (see, Venuti v Booth Mem. Med. Ctr., 204 AD2d 715; Marine Midland Bank v Ramleh Enters., 202 AD2d 403). Under the circumstances of this case, we decline to award costs on this appeal to the appellant (see, CPLR 8101). Thompson, J. P., Altman, Goldstein and McGinity, JJ., concur.