| Davidson v Metropolitan Tr. Auth. |
| 2007 NY Slip Op 07814 [44 AD3d 819] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Ashley Davidson, Appellant, v Metropolitan TransitAuthority et al., Respondents. |
—[*1] Jeffrey Samel & Partners, New York, N.Y. (Judah Z. Cohen of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Phelan, J.), dated June 28, 2006, which granted thedefendants' motion pursuant to CPLR 2104 to enforce a stipulation of settlement.
Ordered that the order is affirmed, with costs.
The plaintiff's attorney had a lengthy involvement in this case, engaging in settlementnegotiations and appearing at pretrial conferences. Thus, he had, as a matter of law, apparentauthority to enter into a stipulation of settlement (see Hallock v State of New York, 64NY2d 224, 231 [1984]). The presence of an attorney at pretrial conferences constitutes "animplied representation by [the client] to defendants that [the attorney] had authority" to bind theclient to the settlement (Hallock v State of New York, 64 NY2d 224, 231-232 [1984]).Indeed, attorneys who are authorized to enter into binding stipulations are required to appear atpretrial conferences (see 22 NYCRR 202.26 [e]; cf. 22 NYCRR 202.12 [b]). Theemployment of an attorney to represent the plaintiff throughout the litigation and to appear on herbehalf at a pretrial conference precludes her from arguing that the attorney lacked the authority tobind her to the settlement (see Arvelo v Multi Trucking, 194 AD2d 758, 759 [1993]). Astipulation made by the attorney may bind a client even where it exceeds the attorney's actualauthority if the attorney had apparent authority to enter into the stipulation (see Hallock vState of New York, 64 NY2d at 231; Matter of Byrne v Nassau County Bd. of Elections,307 AD2d 1053 [2003]). [*2]Thus, "[o]nly where there iscause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a partybe relieved from the consequences of a stipulation made during litigation" (Hallock v State ofNew York, 64 NY2d at 230).
The subsequent letter written by the plaintiff's attorney on behalf of the party to be boundconfirmed the essential terms of the oral settlement agreement reached at the pretrial conferenceand was a subscribed writing sufficient to satisfy the requirements of CPLR 2104 (see Roberts v Stracick, 13 AD3d1208 [2004]; Gaglia v Nash, 8AD3d 992, 993 [2004]; cf.Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286 [2004]; DeVita v Macy's E., Inc., 36 AD3d751 [2007]).
The plaintiff failed to make a showing of any procedural unconscionability in reaching theagreement which would warrant a vacatur of the agreement or a hearing on that issue (seeGillman v Chase Manhattan Bank, 73 NY2d 1, 10-11 [1988]; Town of Clarkstown vM.R.O. Pump & Tank, 287 AD2d 497, 498-499 [2001]). Accordingly, the Supreme Courtcorrectly granted the defendants' motion to enforce the stipulation of settlement. Crane, J.P.,Florio, Lifson and Carni, JJ., concur.