Grant v. Almonte , 2019 NY Slip Op 57 ( 2019 )

Grant v Almonte (2019 NY Slip Op 00057)

Grant v Almonte

2019 NY Slip Op 00057

Decided on January 3, 2019

Appellate Division, First Department

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.

Decided on January 3, 2019
Sweeny, J.P., Gische, Kahn, Oing, Singh, JJ.

8025N 20112/14E

[*1] Steven Grant, Plaintiff-Appellant,

v

Arcodio A. Almonte, Defendant-Respondent.

Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered December 12, 2017, which denied plaintiff's motion to restore the action to the trial calendar, unanimously reversed, on the law, without costs, and the motion granted.

The requisite formality necessary to accord an oral agreement binding effect as an "open court" stipulation under CPLR 2104 was not present when, following a pre-trial conference at which an unidentified per diem attorney appeared for plaintiff, the matter was marked "settled" in the court's records. There was no indication of the terms of the settlement, and the agreement was never further recorded, memorialized, or filed with the County Clerk (see Velazquez v St. Barnabas Hosp.,

13 NY3d 894 [2009]; Andre-Long v Verizon 31 AD3d 353, 354 [2006]; compare Harrison v NYU Downtown Hosp., 117 AD3d 479 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2019

CLERK