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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 26, 2020

That Plaintiff Rather Than Defendant Files Stipulation of Settlement Does Not Make Stipulation Ineffective

On May 15, 2020, Justice Sherwood of the New York County Commercial Division issued a decision in Fisher v. Stone, 2020 NY Slip Op. 31732(U), holding that the fact that the plaintiff, rather than the defendant (as required by CPLR 2104), filed a stipulation of settlement did not render the settlement ineffective, explaining:

CPLR 2104 provides that an agreement between parties is not binding upon a party unless it is in a writing subscribed by him or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk. The commentary on that section of the CPLR notes that CPLR 2104 was amended in 2003 to provide with respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk. At the same time, CPLR 8020 was amended to require the defendant to pay the County Clerk $35 with the filing. The legislative history of these amendments makes clear that their purpose was to generate revenue, with the settlement filing fee enacted along with several other filing fee measures. The important substantive issues raised by the filing requirement are how much detail must be included in describing the terms of such stipulation, and what are the consequences to a party that fails to comply? For example, CPLR 2104 requires the defendant to do the filing, but does it really matter if the Plaintiff, who also has an interest in finality, files the terms of the stipulation and pays the fee? Hopefully not. As far as it is required for the defendant to be the party to file the stipulation, the filing of this stipulation by the plaintiff, instead, is an irregularity ignored pursuant to CPLR 2001.

(Internal quotations and citations omitted) (emphasis added).

The New York court are (usually) very practical, hence the court’s impatience with a litigant trying to get out of a settlement by arguing that the wrong party filed the stipulation of settlement with the court. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding procedure in the New York state courts, particularly in the courts’ Commercial Divisions.

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