## Facts

- Plaintiff brought a medical malpractice action against multiple defendants, including anesthesiologists Spencer Lubin and Kentaro Horiuchi.
- During jury deliberations at a retrial, plaintiff’s counsel told counsel for Lubin and Horiuchi that plaintiff authorized acceptance of a $150,000 settlement.
- Defense counsel responded ambiguously (asking whether there was a settlement), did not clearly accept the terms, and then left without confirming agreement.
- Plaintiff’s counsel told the court clerk that a settlement had been reached but did not state any terms or the settlement amount for the record.
- When the judge later announced the jury had reached a verdict, plaintiff’s counsel asked to place the settlement on the record before the verdict was taken.
- The judge refused to take the settlement on the record at that point and proceeded to take the verdict.
- The jury returned a plaintiff’s verdict of approximately $1.45 million.
- After the verdict, Lubin and Horiuchi moved to enforce the alleged $150,000 settlement; the trial court granted the motion, treating counsel’s in-court representation as sufficient under CPLR 2104.
- Plaintiff appealed from the enforcement order.

## Issues

1. Whether an alleged settlement is enforceable under CPLR 2104 when it was neither memorialized in a signed writing nor stated in open court on the record with its material terms and clear mutual assent.
2. Whether a trial court’s refusal to permit counsel to place settlement terms on the record before taking a jury verdict prevents enforcement of the purported settlement under CPLR 2104.

## Decision

- The Appellate Division, Second Department reversed the order enforcing the settlement.
- The court held there was no enforceable settlement under CPLR 2104 because the purported agreement was not in a signed writing and was not made in open court on the record with the material terms and clear assent.
- The court concluded the trial court erred by refusing to allow the settlement to be placed on the record before the verdict and then enforcing an unrecorded, disputed understanding after the verdict.

## Legal Principles

- Under CPLR 2104, a settlement relating to an action is binding only if it is in a writing subscribed by the party or attorney, or made in open court and placed on the record.
- CPLR 2104 is applied strictly to ensure certainty as to whether an agreement was reached and what its terms were.
- Informal, off-the-record discussions between counsel, or communications to court personnel that omit material terms, do not satisfy the “open court” requirement.
- A purported settlement is not established where the record lacks the material terms and a clear, unequivocal manifestation of mutual assent in the CPLR 2104 manner.
- A court may not prevent creation of an on-the-record CPLR 2104 stipulation and later enforce an alleged agreement that was not properly recorded or reduced to a signed writing.

## Conclusion

The Appellate Division held the alleged $150,000 agreement could not be enforced because CPLR 2104 required either a signed writing or an on-the-record open-court stipulation stating the material terms with clear assent, and neither occurred—particularly after the court refused to permit the settlement to be recorded before taking the jury’s verdict.


Diarassouba v. Urban, 71 A.D.3d 51, 892 N.Y.S.2d 410 (N.Y. App. Div. 2d Dep’t 2009)