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Diarassouba v. Urban

December 15, 2009

MAHMOUD DIARASSOUBA, APPELLANT,
v.
WILLIAM P. URBAN, ETC., ET AL., DEFENDANTS,
SPENCER LUBIN, ETC., ET AL., RESPONDENTS.



APPEAL by the plaintiff, in an action to recover damages for medical malpractice, from an order of the Supreme Court (Michelle Weston, J.), dated March 28, 2008, and entered in Kings County, which granted the motion of the defendants Spencer Lubin and Kentaro Horiuchi to enforce a stipulation of settlement allegedly made in open court pursuant to CPLR 2104.

The opinion of the court was delivered by: Belen, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, RANDALL T. ENG and ARIEL E. BELEN, JJ.

(Index No. 46674/98)

OPINION & ORDER

When the plaintiff's counsel in this medical malpractice action attempted to place a settlement on the record, the trial court directed him to do so after the jury verdict was taken. Defense counsel said nothing when the plaintiff's counsel tried to make this record of the settlement. When the verdict was rendered for an amount far in excess of the proposed settlement--nearly ten times as much--defense counsel predictably moved to enforce the settlement, and the plaintiff's counsel said there was nothing to enforce. The court granted the motion of the defendants Spencer Lubin and Kentaro Horiuchi (hereinafter together the defendants) to enforce the settlement.

The issue presented on this appeal is whether the Supreme Court's refusal to permit the terms of a settlement to be placed on the record prior to the taking of the jury's verdict constitutes error, and, in effect, renders the purported settlement unenforceable. We answer this question in the affirmative.

In this medical malpractice action, the plaintiff, Mahmoud Diarassouba, seeks review of an order of the Supreme Court enforcing an alleged stipulation of settlement with the defendants. At the close of the parties' summations, the court gave instructions to the jury, and the jury then retired to begin deliberations. Shortly thereafter, the jury requested a read-back of certain testimony, which was provided, and the jury once again retired to deliberate.

While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests. "Mr. Jordan: Could I put my request on the record?"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel."Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?"The Court: Because I said what I have to say. Let's proceed." Viuker was silent throughout this whole exchange.

The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years.

After hearing the jury verdict, Jordan asserted that the purported stipulation of settlement was invalid on the ground that the court never permitted the settlement terms to go on the record. Jordan further posited that the settlement was invalid on the ground that the defense never consented to the settlement, but rather, was completely silent throughout Jordan's requests to put the settlement on the record. "The Court: Now [that the verdict has been taken], Mr. Jordan, what is it that you would like to say?"Mr. Jordan: Now, your Honor, what I will report for the record is that I attempted to talk to the Court about settlement and I watched the defense attorney, while he heard that there was a quick verdict, go outside twice. I heard him come in, and while he was in this courtroom he did nothing to second my application to this Court to put a settlement on the record and the Court did nothing to ask the parties whether ...


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