Med Mal Settlement Doomed by Failure to Put on Record
The law governing settlements states in part that “[a]n agreement between parties or their attorneys relating to any matter in an action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered.” CPLR 2104. Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record. The Appellate Court upheld this principle in Diarassouba v. Urban, 2009 Slip Op. 09420 (2d Dept. Dec. 15, 2009).
In this medical malpractice action, while the jury was deliberating, plaintiff’s counsel obtained consent from his client to settle the action. Counsel presented the settlement figure to defendant, however, the parties failed to put the agreement in writing. Prior to the verdict being read, plaintiff’s counsel requested to put the settlement agreement on the record. The judge declined to do so until after the verdict was read, which returned an award ten times the amount of the settlement figure. Plaintiff then argued that a binding agreement had not been made and over defendant’s objections, the Appellate Court held that the jury’s award must stand because the requirements of CPLR 2104 had not been satisfied.Â
