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GRABOIS v. DURA ERECT CORP.

October 24, 1997

STUART R. GRABOIS, in his fiduciary capacity as Director, and THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, PENSION FUND, VACATION FUND, ANNUITY FUND, APPRENTICE-SHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND, and SUPPLEMENTAL FUNDS, Plaintiffs,
v.
DURA ERECT CORP., Defendant.



The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 On November 20, 1995, after having been informed that this case was settled, the Court entered a "30-day Order" -- an order dismissing the case with leave to reinstate in the event the settlement was not consummated within 30 days. The Court heard nothing more about this case until June 26, 1997, some 585 days later, when plaintiffs, represented by new counsel (their current attorneys), wrote a letter to the Court requesting that the case be reinstated because the settlement was never finalized. Plaintiffs now move for an order vacating the order of dismissal and reinstating the action. For the reasons that follow, the motion is denied.

 FACTS

 This is an employee fringe benefits funds collection case in which it is apparently undisputed that defendant Dura Erect Corp. is indebted to plaintiffs in the principal amount of approximately $ 146,855 for the period from July 1, 1988 through June 30, 1992.

 In the fall of 1995, the parties settled this case in principle by agreeing on a payment schedule. On November 20, 1995, after being advised the case had been settled, I issued a an order (the "Order") dismissing the case but giving the parties 30 days in which to request reinstatement in the event they were unable to finalize the settlement. The Order provided in its entirety as follows:

 
It having been reported to this Court that the above entitled action has been settled,
 
IT IS ORDERED that this action be, and the same hereby is, discontinued with prejudice but without costs; provided, however, that if settlement is not consummated within 30 days of the date of this order, either party may apply by letter for restoration of the action to the calendar of the undersigned, in which event the action will be restored.

 Unfortunately, the parties were unable to finalize the settlement within 30 days. Neither side, however, requested reinstatement of the case, nor did the parties request an extension of the 30-day period, as parties in other cases often do when difficulties are encountered in finalizing a settlement after issuance of a 30-day order. To the contrary, the parties merely continued to correspond for months in an attempt to finalize a settlement stipulation. In May 1996, defendant finally executed a settlement agreement, but made hand-written revisions to the agreement. (Kazazian Aff. P 9 & Exs. M, N). Plaintiffs' prior counsel, however, did not respond for three months. In July 1996, plaintiffs' counsel finally responded. Instead of simply signing and returning the agreement signed by defendant, plaintiffs signed and transmitted a revised settlement agreement, which meant that defendant had to sign again. (Id. P 13 & Exs. O, P). Plaintiffs' prior counsel by-passed defendant's counsel and sent the stipulation directly to defendant for its signature. (Sutton Aff. P 5). Under this revised stipulation, the first payment of $ 3,600 was due on August 10, 1996, with 46 other monthly payments to follow. (Kazazian Aff. Ex. O).

 Defendant never signed or returned the revised stipulation, nor did it make any payments under the settlement. Plaintiffs and their prior counsel, however, also did nothing; they made no effort to obtain a fully executed settlement agreement, nor did they make any demand for payment.

 In the fall of 1996, plaintiffs "undertook a wholesale change" in counsel. (Kazazian Aff. P 15). Plaintiffs' current counsel took over all of the funds collection matters. The status of the instant case was reported to new counsel by prior counsel as "settled." (Id. P 16).

 In April 1997, plaintiffs' current attorneys finally realized there was a problem. They were unable to speak with defendant's counsel, however, until June 1997. They wrote to the Court on June 26, 1997 requesting reinstatement of the action.

 This motion ...


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