BUBECK v. MAIN UROLOGY ASSOCIATES

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Supreme Court, Appellate Division, Fourth Department, New York.

Donna BUBECK, Plaintiff-Appellant, v. MAIN UROLOGY ASSOCIATES, P.C., Philip J. Aliotta, M.D., Ralph C. Sperrazza, M.D., P.C., and Ralph C. Sperrazza, M.D., Defendants-Respondents.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT, KEHOE and LAWTON, JJ. Wayne C. Felle, Williamsville, for Plaintiff-Appellant. Margaret K. Hey, Buffalo, for Defendants-Respondents Main Urology Associates, P.C. and Philip J. Aliotta, M.D. John T. Loss, Buffalo, for Defendants-Respondents Ralph C. Sperrazza, M.D., P.C. and Ralph C. Sperrazza, M.D.

Plaintiff was represented by J. Vaughan Millane, Jr., Esq. when she commenced this medical malpractice action against defendants.   At a pretrial conference, Millane entered into a written stipulation with defendants' attorneys precluding plaintiff from presenting any evidence concerning the permanency of her injuries.   Millane died several months before trial and plaintiff learned of the stipulation after retaining a new attorney.   Plaintiff moved to vacate the stipulation, contending that Millane had exceeded the scope of his authority because the stipulation was contrary to her express directives.

 Supreme Court properly denied plaintiff's motion.   A stipulation “made by counsel may bind a client even where it exceeds counsel's actual authority if counsel had apparent authority to enter into the stipulation” (Lynch v. Lynch, 122 A.D.2d 572, 574, 505 N.Y.S.2d 739, lv. denied 68 N.Y.2d 610, 508 N.Y.S.2d 1027, 501 N.E.2d 600;  see, Hallock v. State of New York, 64 N.Y.2d 224, 228, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Chattin v. Klock Oil Co., 270 A.D.2d 852, 706 N.Y.S.2d 552).

 Because her attorney had a lengthy involvement in the case, engaging in settlement negotiations and appearing at pretrial conferences, he had apparent authority to enter into stipulations as a matter of law (see, Hallock v. State of New York, supra, at 231-232, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   The presence of the attorney at pretrial conferences constitutes “an implied representation by [the client] to defendants that [the attorney] had authority” to bind the client to the stipulation (Hallock v. State of New York, supra, at 231-232, 485 N.Y.S.2d 510, 474 N.E.2d 1178).   Indeed, only those attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences (see, 22 NYCRR 202.26 [e];  see also, 22 NYCRR 202.12[b] ).   The appearance of an attorney at a pretrial conference precludes the client from thereafter arguing that the attorney lacked such authority (see, Arvelo v. Multi Trucking, 194 A.D.2d 758, 759, 599 N.Y.S.2d 301).   Thus, in the absence of “cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident” (Hallock v. State of New York, supra, at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178), plaintiff is not entitled to vacatur of the stipulation (see, Javarone v. Pallone, 234 A.D.2d 814, 815, 651 N.Y.S.2d 664, appeal dismissed 89 N.Y.2d 1030, 658 N.Y.S.2d 245, 680 N.E.2d 619, 90 N.Y.2d 884, 661 N.Y.S.2d 827, 684 N.E.2d 276;  Arvelo v. Multi Trucking, supra, at 758-759, 599 N.Y.S.2d 301).

Order unanimously affirmed without costs.

MEMORANDUM: