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
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,
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,
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.