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Appellate Practice - Legal Malpractice - Motion for Dismissal - Enforcement of Settlement

Appellate Division, Second Department (124 A.D.2d 582)

124 A.D.2d 582, *; 507 N.Y.S.2d 728, **;

1986 N.Y. App. Div. LEXIS 61891, ***

Kathleen Wolstencroft, Respondent, v. Doris Sassower, Appellant

[NO NUMBER IN ORIGINAL]

Supreme Court of New York, Appellate Division, Second Department

124 A.D.2d 582; 507 N.Y.S.2d 728; 1986 N.Y. App. Div. LEXIS 61891

November 3, 1986

JUDGES: [***1]

Thompson, J. P., Weinstein, Rubin and Spatt, JJ., concur.

OPINION: [*582] [**728] In an action to recover damages for legal malpractice, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Cerrato, J.), dated May 16, 1985, as denied her motion to dismiss the complaint and granted the plaintiff's cross motion to amend the complaint.

Ordered that the order is affirmed, insofar as appealed from, with costs.

The plaintiff's complaint states a valid cause of action to recover damages for legal malpractice in that it alleges that the defendant neglected to defend a British action (see, Siegel v Kranis, 29 AD2d 477, 479) which was the proximate cause of the additional expense of litigating in Great Britain as well as in New York. Furthermore, the claim is viable despite the plaintiff's settlement of the underlying matrimonial action because it is alleged that the settlement of that action was effectively compelled by the mistakes of the defendant, the plaintiff's former counsel (see, Cohen v Lipsig, 92 AD2d 536).

The plaintiff's failure to join subsequent counsel is not fatal [*583] to her action (cf. CPLR 3211 [a] [10]) [***2] because joint tort-feasors are not necessary parties (see, Hecht v City of New York, 60 NY2d 57, 62; Siskind v Levy, 13 AD2d 538, 539; CPLR 1001 [a]).

Finally, the court did not abuse its discretion in granting the plaintiff leave to amend her complaint (see, Fahey v County of Ontario, 44 NY2d 934, 935).

Appellate Division, Second Department (212 A.D.2d 598)

 

212 A.D.2d 598, *; 623 N.Y.S.2d 7, **;

1995 N.Y. App. Div. LEXIS 1552, ***

Kathleen C. Wolstencroft, respondent, v. Doris L. Sassower, appellant.

92-03928, 92-03929

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

212 A.D.2d 598; 623 N.Y.S.2d 7; 1995 N.Y. App. Div. LEXIS 1552

January 10, 1995, Argued

February 14, 1995, Decided

CASE SUMMARY

PROCEDURAL POSTURE: Appellant attorney sought review of a judgment from the Supreme Court, Westchester County (New York), which granted respondent former client's motion to compel compliance with a stipulation of settlement and held the attorney in contempt in the former client's malpractice claim.

OVERVIEW: The former client filed a claim to recover damages for attorney malpractice. The trial court granted the former client's motion to compel her compliance with a stipulation of settlement and held the attorney in contempt for violating the order to compel compliance. On appeal, the court affirmed the decision of the trial court. The court held that the trial court had subject matter and personal jurisdiction and that there was no basis for releasing the attorney from her obligations under the stipulation of settlement. The court also held that its was a technical violation of the stipulation for the attorney's insurance company to have forwarded the former clients share of settlement proceeds directly to the former client's counsel, but that the violation was de minimis under the circumstances. The court further held that there was no legal ground for disqualification of the trial judge.

OUTCOME: The court affirmed the judgment of the trial court granting respondent former client's motion to compel compliance with a stipulation of settlement and holding the attorney in contempt.

CORE TERMS: settlement, civil contempt, stipulation of settlement, contempt, legal malpractice, action to recover, disbursements, malpractice, execute

LexisNexis(R) Headnotes Hide Headnotes

Civil Procedure > Entry of Judgments > Specific Acts

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Action

HN1 Where the court has both subject matter and personal jurisdiction., the defendant is obligated, in the absence of a stay, to obey the court's order until it is vacated or reversed. More Like This Headnote | Shepardize: Restrict By Headnote

Civil Procedure > Settlements > Settlement Agreements

Civil Procedure > Appeals > Stipulated Reversal

HN2 Stipulations of settlement are judicially favored, particularly in the case of stipulations entered into in open court pursuant to N.Y. C.P.L.R. 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. As in the interpretation of any contract, the role of this court is to determine the intent and purpose of the stipulation which are generally gleaned from an examination of the record as a whole. Only where there is a cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation. More Like This Headnote | Shepardize: Restrict By Headnote

Civil Procedure > Trials > Disqualification & Recusal

HN3 Where no legal ground for disqualification is present, it is up to the conscience and discretion of the court to determine whether it should recuse itself in a given case. N.Y. Judiciary Law § 14. More Like This Headnote

COUNSEL: [***1] Bickford Hahn & Haley, New York, N.Y. (John H. Haley of counsel), for appellant.

JUDGES: CHARLES B. LAWRENCE, J.P., EDWARD J. HART, WILLIAM D. FRIEDMANN, GABRIEL M. KRAUSMAN, JJ.

OPINION: [*598]

[**8] DECISION & ORDER

In an action to recover damages for attorney malpractice, the defendant appeals, (1) as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered February 11, 1992, as granted the plaintiff's motion to compel her compliance with a stipulation of settlement and imposed sanctions, and (2) from an order of the same court, entered May 4, 1992, which, after a hearing held her in contempt based on its finding that she had violated the order entered February 11, 1992.

ORDERED that the order entered February 11, 1992, is affirmed insofar as appealed from; without costs or disbursements, and it is further,

ORDERED that the order entered May 4, 1992, is affirmed, without costs or disbursements.

The plaintiff, a former client of the defendant, moved on two occasions for an order holding the defendant in civil [***2] contempt for refusing to comply with a stipulation entered into in open court which, inter alia, required the defendant to execute and tender general releases to the plaintiff and her counsel in settlement of an action to recover damages for attorney malpractice. The first motion, dated January 7, 1992, culminated in the court's order entered February 11, 1992, which failed to hold the defendant in civil contempt due to the technical absence of a judicial mandate, but which directed her to comply with the stipulation of settlement.

The second motion, dated March 16, 1992, was to hold the defendant in civil contempt for her continued failure to comply with the order entered February 11, 1992, and the court's oral directive of the same date that she execute and tender the releases. On May 4, 1992, after a hearing, the court granted the plaintiff's motion and held the defendant in civil contempt based on her violation of the February 11, 1992, order, and directed that she be remanded to the custody of the [*599] Westchester County Department of Corrections until she purged the contempt by executing a general release in favor of the plaintiff and the plaintiff's counsel, and by paying a fine [***3] of $ 10,250 to the plaintiff's counsel.

[**9] Contrary to the defendant's contentions, HN1the court had both subject matter and personal jurisdiction. Accordingly, the defendant was obligated, in the absence of a stay, to obey the court's order entered May 4, 1992, until it was vacated or reversed (see, Busters Cleaning Corp. v Frati, 203 AD2d 409, 610 N.Y.S.2d 558; Garry v Garry, 121 Misc 2d 81, 86-87, 467 N.Y.S.2d 175).

There is no basis for releasing the defendant from her obligations under the stipulation of settlement. It is well settled that HN2stipulations of settlement are judicially favored, particularly in the case of stipulations entered into in open court pursuant to CPLR 2104, where "strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process" ( Hallock v State of New York, 64 NY2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; see also, Privin v Landolfi, 191 AD2d 485, 596 N.Y.S.2d 707). As in the interpretation of any contract, the role of this court is to determine the intent and purpose of the stipulation which are generally gleaned from an examination [***4] of the record as a whole (see, Thomas-Burton v Thomas, 188 AD2d 459, 590 N.Y.S.2d 908). Only where there is a cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation (see, Privin v Landolfi, supra).

The parties in the instant matter stipulated to settle and discontinue the legal malpractice action in open court and with counsel present. Although the defendant was somewhat contentious during the proceedings, she voluntarily agreed to the essential terms of the stipulation and there is every indication that she understood the nature and consequences of the settlement. Although it was a technical violation of the stipulation for the defendant's insurance company to forward the plaintiff's share of the settlement proceeds directly to the plaintiff's counsel, instead of to the defendant's counsel to be distributed to the plaintiff's counsel, the violation was de minimis under the circumstances. The defendant's obligations under the stipulation were not conditioned upon the proper compliance with this procedure for distributing the settlement proceeds and, in any [***5] event, the defendant had no interest in that portion of the settlement.

Since the defendant has failed to identify any ground upon which Justice Colabella's impartiality might reasonably be [*600] challenged, or how the denial of her oral application might have affected the outcome of the case, the court properly exercised its discretion in denying the application. Justice Colabella was not a party to the contempt proceedings or the underlying legal malpractice claim, had no prior contact with the parties as an attorney, and there was no showing that he was interested or related by consanguinity or affinity to any party to the controversy. HN3Where, as here, no legal ground for disqualification was present (see, Judiciary Law § 14), it is up to the conscience and discretion of the court to determine whether it should recuse itself in a given case (see, People v Moreno, 70 NY2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200; People v Hoehne, 203 AD2d 480, 610 N.Y.S.2d 579; Manhattan School of Music v Solow, 175 AD2d 106, 571 N.Y.S.2d 958).

The defendant's remaining contentions are without merit.

LAWRENCE, J.P., HART, FRIEDMANN and KRAUSMAN, JJ. [***6] , concur.