ANNA GIORDANO v. EMMAGENE WORLEY WILLIAM THOMAS FARVER THOMAS GUGLIELMI KATHERINE NEARY (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 75, 76, 77, 78, 79, 80, 81, 82, 94 were read on this motion to/for SUBST/RELIEVE/WITHDRAW COUNSEL.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 were read on this motion to/for ENFORCEMENT OF PUPORTED SETTLEMENT AGREEMENT.

In this consolidated action to recover damages for medical malpractice based on alleged departures from good and accepted practice, lack of informed consent, common-law negligence not based on medical malpractice, negligence per se, breach of contract, loss of spousal consortium, and wrongful death, as well as pursuant to Public Health Law § 2801-d for purported violations of statutes and regulations governing residential nursing facilities, the plaintiff's attorneys, Sacco & Fillas, LLP, move pursuant to CPLR 321(b) to be relieved of their obligation to represent her in this action (MOT SEQ 003). The plaintiff opposes that motion. The defendants New York-Presbyterian-Columbia University Irving Medical Center, Emmagene Worley, M.D., Williams Thomas Farver, M.D., and Thomas Guglielmi, R.N. (collectively the NYPH defendants), separately move to enforce a putative settlement agreement that allegedly had been reached with the plaintiff on November 24, 2025 (MOT SEQ 004). The plaintiff opposes that motion. The motions are denied.

On November 18, 2025, the plaintiff discontinued this action against the defendant Katherine Neary, R.N. On November 24, 2025, Justice Judith McMahon conducted a remote settlement conference with the attorneys for the plaintiff and the NYPH defendants, who purportedly agreed to settle the action between them for the gross sum of $110,000.00. The plaintiff herself did not personally participate in that conference and, according to her, she never agreed to settle the action against the NYPH defendants for that amount. The NYPH defendants nonetheless forwarded a set of settlement papers to the plaintiff's attorneys, which included a proposed general release. Inasmuch as the plaintiff's decedent was a resident of New Jersey when she died, the plaintiff's attorneys also drafted and prepared a petition and supporting papers that they intended to file with the New Jersey Surrogate's Court, Ocean County, requesting that that court authorize the plaintiff to compromise the claims that she had asserted on behalf of her decedent's estate and the distributees of that estate. According to the plaintiff's attorneys, although the plaintiff executed the release, she never executed the papers necessary to file the petition with the New Jersey court. Upon concluding that she was not satisfied with the settlement amount, the plaintiff advised her attorneys not to tender the release or any other settlement papers to the NYPH defendants' attorneys. Her attorneys thus did not tender any written, executed stipulation of settlement, an executed release, or any executed stipulation of discontinuance to the NYPH defendants' attorneys. Nor have they filed anything with the New Jersey Surrogate's Court.

The NYPH defendants argued that, since they and the plaintiff's attorneys reached an oral agreement to settle the action during a remote settlement conference with Justice McMahon, and because the plaintiff's attorneys conceded that the plaintiff had executed the release, a binding, enforceable settlement agreement arose, notwithstanding that the parties did not execute a written stipulation of settlement, that they did not place an oral settlement agreement on the record in open court, and that the plaintiff's attorneys never tendered the executed release to the NYPH defendants. This court rejects that contention.

In the first instance, EPTL 5-4.6(a) provides, in relevant part, that

"[w]ithin sixty days of the application of an administrator appointed under 5-4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court shall, after inquiry into the merits of the action and the amount of damages proposed as a compromise either disapprove the application or approve in writing a compromise for such amount as it shall determine to be adequate including approval of attorneys fees and other payable expenses as set forth below, and shall order the defendant to pay all sums payable under the order of compromise, within the time frames set forth in section five thousand three-a of the civil practice law and rules, to the attorney for the administrator or personal representative for placement in an interest bearing escrow account for the benefit of the distributees."

EPTL 5-4.6(e) provides that

"[n]othing in this section shall be deemed to preclude the attorney for the administrator or personal representative from petitioning the surrogate's court for approval of a compromise and for allocation and distribution thereof."

Approval of a proposed compromise by an appropriate court of competent jurisdiction is a condition precedent to the settlement of an action to recover for wrongful death that had been prosecuted on behalf of the distributees of a decedent's estate (see Bell v Jolly, 173 Misc 2d 273, 275-276 [Sup Ct, Saratoga County 1997]; cf. Matter of Essenberg, 120 Misc 2d 993, 995 [Surr Ct, Suffolk County 1983] [where representative of decedent's estate, who had been granted unrestricted authority to prosecute and settle action pursuant to EPTL 11-1.1, but did not pursue wrongful death cause of action, court approval of compromise pursuant EPTL 5-4.6(a) was not required]).

Where a decedent was domiciled a state other than New York at the time of his or her death, under New York law, an appropriate court sitting in that state has concurrent jurisdiction with the Supreme Court to approve an application for permission to compromise claims made on behalf of the decedent's estate and distributees (see Matter of Elder, 90 Misc 2d 460, 462-463 [Surr Ct, Suffolk County 1977]). New Jersey recognizes an action "by a fiduciary for the approval of a compromise of a claim" (NJ Ct Rules Rule 4:95-3). Moreover, under New Jersey law, the apportionment of the distribution of the settlement proceeds of a wrongful death action must be determined after a nonjury trial (see NJ Stat § 2A:31-4; Lovely v Rahway Hosp., 227 NJ Super 614, 617, 548 A2d 242 [Sup Ct, Union County 1988]).

Inasmuch as no court of competent jurisdiction has yet approved of the proposed compromise and settlement of this action, neither the plaintiff nor her attorneys had authority to settle the action, and any proposed settlement agreement is thus null and unenforceable. Hence, the NYPH defendants' motion to enforce the putative settlement agreement may be denied on that ground alone.

Even had the plaintiff or her attorneys secured court approval for the settlement of the instant action, the NYPH defendants have not established that an enforceable settlement agreement had been entered into between them and the plaintiff in the first instance. CPLR 2104 provides that

"An 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 a writing subscribed by him or his attorney 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."

"[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" (Diarassouba v Urban, 71 AD3d 51, 55 [2d Dept 2009]).

"If not reduced to a writing signed by the parties or in an order, the open court requirement also is not satisfied in locations without a justice presiding (see Kushner v Mollin, 144 AD2d 649 [1988]), and it is not satisfied during less formal stages of litigation, such as a pretrial conference (see Gustaf v Fink, 285 AD2d 625)"

(id. [emphasis added]). "The open-court exception to CPLR 2104 was created in order to codify the previously existing practice of enforcing oral stipulations that were made in open court in the course of judicial proceedings" (id. at 56, citing Matter of Dolgin Eldert Corp. v Dolgin, 31 NY2d 1, 9 [1972]). "Notably, these oral stipulations were recorded by some type of formal entry" (Diarassouba v Urban, 71 AD3d at 56).

As the Court of Appeals explained it in Dolgin,

"[j]udicial proceedings in 'open court', wherever held, including chambers of course, and informal conferences in chambers or robing rooms or even a courtroom are manifestly disparate. Even before full reporting in open court became universal in courts of record, the formality, publicity, and solemnity of an open court proceeding marked it as different from the preliminary atmosphere attached to informal conferences elsewhere. Moreover, the proceedings in open court would always have some formal entries, if only in the clerk's minutes, to memorialize the critical litigation events. In the latter days, it has also meant an available full transcript beyond dispute and the fallibility of memory. . . . To extend the exception of CPLR 2104 beyond its meaning to cover purported agreements reached elsewhere is to extend a limited exception derived from necessity (yet with significant safeguards) to an uncontrollable area"

(Matter of Dolgin Eldert Corp. v Dolgin, 31 NY2d at 10; see Diarassouba v Urban, 71 AD3d at 56; Veith v ABC Paving Co., 58 AD2d 257, 259 [4th Dept 1977]). Hence, a court's enforcement of settlements that were "not formally recorded on the court record or elsewhere, would create 'issues of fact and credibility among the parties, the presiding Justice, and the court clerk.' . . . As a result, it would not only become more difficult to ascertain the facts, but would also be detrimental to the integrity of the court and its litigation process" (Diarassouba v Urban, 71 AD3d at 56, quoting Matter of Dolgin Eldert Corp. v Dolgin, 31 NY2d at 10; see Van Syckle v Powers, 106 AD2d 711, 712 [3d Dept 1984] ["No attempt was made to place the agreement on the record despite invitation from the trial court to do so. Since the agreement was not in writing or conducted in open court as required by CPLR 2104, it is not binding against plaintiffs"]). Hence, any understanding that the parties allegedly reached before Justice McMahon does not qualify as or constitute a binding or enforceable settlement agreement.

Nor have the NYPH defendants established the existence of a settlement agreement in writing that had been subscribed by the plaintiff or her attorney that included the terms of such a stipulation of settlement, and which had been filed by those defendants with the county clerk, as required by CPLR 2104.¹ In fact, all of the parties have agreed that there is no specific written stipulation or agreement of settlement in existence that contains the terms of the putative settlement, let alone one that had been signed by the parties or their attorneys. They also apparently agree that the plaintiff's attorneys have not executed a stipulation of discontinuance. The only document upon which the NYPH defendants now rely was a release that purportedly was executed by the plaintiff, but not tendered to them by the plaintiff's attorney. That allegedly executed release is not before the court, since the plaintiff's attorneys did not submit it, and the NYPH defendants' attorneys only submitted an unsigned version of the proposed release.

As explained above, in the absence of a duly entered compromise order, the terms of the aforementioned proposed release are unenforceable in the first instance. In any event, as the Appellate Division, First Department, has explained it,

" '[A] general release is governed by principles of contract law' (Mangini v McClurg, 24 NY2d 556, 562 [1969]). Citing White v Corlies (46 NY 467, 469-470 [1871]), this Court has held that 'it is essential in any bilateral contract that the fact of acceptance be communicated to the offeror' (Agricultural Ins. Co. v Matthews, 301 AD2d 257, 259 [1st Dept 2002]; see also D'Agostino Gen. Contrs. v Steve Gen. Contr., 267 AD2d 1059 [4th Dept 1999]; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 714 [2d Dept 1980], affd 54 NY2d 742 [1981]). Therefore, this action was not settled because the executed release was never forwarded to defendant nor was acceptance of the offer otherwise communicated to defendant or its carrier"

(Gyabaah v Rivlab Transp. Corp., 102 AD3d 451, 451-452 [1st Dept 2013] [emphasis added]). Inasmuch as the plaintiff's attorneys never tendered or delivered an executed release to the NYPH defendants' attorneys or insurance carrier, "this action was not settled," and the NYPH defendants' motion to enforce the putative settlement with the plaintiff must be denied on this ground as well.

Consequently, the NYPH defendants' motion must be denied.

"[A]n attorney may withdraw as counsel of record upon a showing of good and sufficient cause, and reasonable notice to the client" (Mason v MTA New York City Tr., 38 AD3d 258, 258 [1st Dept 2017]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (McDonald v Shore, 100 AD3d 602, 603 [2d Dept 2012] [internal quotation marks and citations omitted]). In determining whether the plaintiff's attorneys here have a legitimate basis for seeking leave to withdraw as counsel, the court recognizes that the plaintiff may not agree with her attorneys as to how best to proceed, and that they may have a disagreement as to the likelihood of success on the merits of the action or the appropriate settlement value of the action.

Although courts have permitted counsel to withdraw on grounds of "irreconcilable differences" (see Misek-Falkoff v Metropolitan Tr. Auth., 65 AD3d 576, 577 [2d Dept 2009]) and a "breakdown in the attorney-client relationship" (see Musachio v Musachio, 80 AD3d 738, 738 [2d Dept 2011]), there is ample appellate authority for the proposition that a mere disagreement between an attorney and client as to whether a claim may be prosecuted successfully does not warrant withdrawal (see Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007]; LeMin v Central Suffolk Hosp., 169 AD2d 821, 821 [2d Dept 1991]; Rann v Lerner, 160 AD2d 922, 922 [2d Dept 1990]; see also Estate of Miolan v State of New York, 39 Misc 3d 1076, 1077 [Ct Claims 2013]; Countryman v Watertown Hous. Auth., 13 Misc 3d 632, 633 [Sup Ct, Jefferson County 2006] ["the fact that a lawsuit is of questionable liability, limited damages, and a likely unfavorable trial result is not the type of impairment of the attorney-client relationship that permits withdrawal of counsel"]; cf. Walker v Mount Vernon Hosp., 5 AD3d 590 [2d Dept 2004] [permitting withdrawal where attorney had a good faith belief that there was no merit to client's claim]). Moreover, a mere disagreement between a client and an attorney as to the appropriate strategy for prosecuting or defending a civil action is an insufficient ground upon which to grant an attorney's motion for leave to withdraw from representing the client (see Jessamy v Doran Group, 36 Misc 3d 1220[A], 2012 NY Slip Op 51408[U], *3-4, 2012 NY Misc LEXIS 3627, *5, 9 [Sup Ct, Westchester County, Jul. 30, 2012] [Connolly, J.]; Scher v Mishkit, 2008 NY Misc LEXIS 712, *2 [Sup Ct, Suffolk County, Feb. 1, 2008]).

The court concludes that any disagreement between the plaintiff and her attorneys either as to the likely success of the action, as to the reasonable settlement value of the action, or as to appropriate litigation tactics and strategy at this juncture is not a sufficient basis upon which to relieve her attorneys of their obligation to represent her, inasmuch as the prejudice to the plaintiff in having to litigate the action herself outweighs the burden on the attorney in having to proceed with the litigation (see McDonald v Shore, 100 AD3d at 603; George v George, 217 AD2d 913, 913 [4th Dept 1995]).

Moreover, were the court to grant the motion, the plaintiff, who is not herself an attorney, would lack capacity to represent herself as the executor of her decedent's estate, since her attorneys have not established that she is the sole beneficiary of that estate or that the decedent's estate is not indebted to third parties, and a non-attorney may not prosecute an action that might adversely the interests of creditors or other beneficiaries of the estate (see Martins v Memorial Sloan Kettering Cancer Ctr., 215 AD3d 474, 475 [1st Dept 2023]).

Accordingly, it is,

ORDERED that the motion of Sacco & Fillas, LLP, for leave to withdraw as the plaintiff's attorney (MOT SEQ 003) is denied, without prejudice to renewal if, over the course of a reasonable period of time, it can establish that there has been a significant deterioration in its relationship with the plaintiff; and it is further,

ORDERED that motion of the defendants New York-Presbyterian-Columbia University Irving Medical Center, Emmagene Worley, M.D., Williams Thomas Farver, M.D., and Thomas Guglielmi, R.N., to enforce the terms of a putative settlement agreement allegedly reached on November 24, 2025 (MOT SEQ 004) is denied; and it is further,

ORDERED that the status of this action shall be amended from "disposed" to "restored-active," and the Trial Support Office and the Clerk of the Court shall make all necessary entries in their records to reflect this amendment.

This constitutes the Decision and Order of the court.

DATE 9/9/2026

JOHN J. KELLEY, J.S.C.

FOOTNOTES

1.   The court notes that the Appellate Division, Second Department, has suggested, in dicta, that a written and signed stipulation of settlement need not be filed with the County Clerk to be binding (see Pile v Grant, 41 AD3d 810, 811 [2d Dept 2007]).

John J. Kelley, J.