JOHNSON v. FOUR TRUCK RENTAL (1997)

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated August 9, 1996, which denied her motion to reinstate the action to the trial calendar.

ORDERED that the order is reversed, with costs payable by the respondent Four G's Truck Rental, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for restoration to the trial calendar.

 Contrary to the contentions of the respondent Four G's Truck Rental, the alleged settlement of this matter reached during a pretrial conference is not enforceable since it was never reduced to a writing and signed by the parties, nor made in open court (see, CPLR 2104;  Margolis v. New York City Trans. Auth., 233 A.D.2d 483, 650 N.Y.S.2d 30;  Phillips v. Pamper Decorating Serv., 228 A.D.2d 425, 643 N.Y.S.2d 666;  Venuti v. Booth Mem. Med. Ctr., 204 A.D.2d 715, 614 N.Y.S.2d 253).   Moreover, the notation allegedly appearing on the Trial Judge's trial calendar, “SBT 15,000”, does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104 (Zambrana v. Memnon, 181 A.D.2d 730, 731, 581 N.Y.S.2d 83).

 Inasmuch as there is no proof in the record that an enforceable settlement was ever reached, the court improvidently exercised its discretion in denying the plaintiff's motion to restore the case to the trial calendar (see, Margolis v. New York City Trans. Auth., supra;  Phillips v. Pamper Decorating Serv., supra;  Venuti v. Booth Mem. Med. Cent., supra;  Rivera v. Triple M. Roofing Corp., 116 A.D.2d 561, 497 N.Y.S.2d 416).

We have reviewed the remaining contentions of the respondent Four G's Truck Rental and find them to be without merit.

MEMORANDUM BY THE COURT.