Diarassouba v. Urban

Mahmoud Diarassouba (plaintiff) sued William Urban and others (collectively, Urban) (defendants) for medical malpractice. While the jury was deliberating, Conrad Jordan (Diarassouba’s attorney) told Barry Viuker (Urban’s lawyer) that Diarassouba was willing to accept a $150,000 settlement. Rather than confirm the settlement, Viuker asked, “Do we have a settlement?” Jordan responded yes. Viuker then left the room without saying anything more about settlement. Jordan informed the court clerk that the parties had reached a settlement but did not disclose the terms to the clerk. The clerk did not record the settlement, but the clerk notified the judge. The judge thereupon informed the parties that the jury had reached a verdict. Jordan asked the judge to memorialize the settlement on the record before accepting the verdict, but the judge refused, stating that once she had a verdict, she took the verdict and “then the parties are free to do what they agreed to. An agreement is an agreement.” Viuker was silent during Jordan’s discussion with the judge. The jury ruled for Diarassouba, awarding him $1.45 million in damages. Jordan then stated that the parties’ attempted settlement was invalid because (1) the court never allowed the terms to be put on the record and (2) Viuker never consented to the settlement because Viuker was silent during Jordan’s efforts to put the settlement on the record. The supreme court ruled that the settlement was valid because Jordan declared that there was a settlement in open court while the judge was on the bench with the clerk and court reporter in attendance. Diarassouba appealed, arguing that under Civil Practice Law and Rules (CPLR) § 2104, a settlement either had to be reflected in a written stipulation signed by all parties or made in open court and placed in the record.