Hallock v. State

— Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered September 21, 1981 in Schoharie County, upon a decision of'the court at Trial Term (Weiss, J.), without a jury. This matter has been previously before us. Plaintiffs’ land was appropriated on August 14,1969 by the Power Authority of the State of New York through the State of New York. Plaintiffs challenged the taking and sought a declaratory judgment, contending that the State exceeded the power of eminent domain by taking the land in fee. A denial of cross motions for summary judgment was upheld by this court (39 AD2d 172) and the Court of Appeals (32 NY2d 599), and the matter was remitted for a trial on the merits in Supreme Court in Schoharie County. The trial was to be held on April 22, 1975. On that day, a stipulation was put on the record which provided for a discontinuance of the action along with another action pending between the parties in the Court of Claims in exchange for a reconveyance of the property to plaintiffs and retention of $7,500 previously paid to them by the State. Plaintiff Seeley Phillips was present on that date but plaintiff Carlton Hallock was absent due to illness, resulting in his hospitalization that day. By order entered August 9, 1976, the stipulation was set aside by Special Term on plaintiffs’ motion. That order was reversed by this court (58 AD2d 67) on procedural grounds. We held that a plenary action was necessary to set aside a discontinuance of any action and the matter was remitted for a trial. A trial of this newly commenced action to set aside the stipulation of settlement was held in October, 1980. A judgment was rendered granting specific performance of the agreement to defendants and dismissing plaintiffs’ causes of action. Defendant Quartararo and Quartararo, Esqs., former counsel for plaintiffs was dropped as a party on consent of all litigants. This appeal by plaintiffs ensued. In their complaint, plaintiffs had alleged that they never consented to, approved, confirmed or ratified the settlement; that their attorney acted without their authority in reaching the settlement; and that they did not realize that the proceedings of April 22, 1975 finally disposed of the action. They sought rescission of the settlement ánd a trial on the merits. Defendants generally denied the allegations of the complaint and interposed affirmative defenses of failure to state a cause of action, ratification of the settlement by plaintiffs and laches. In its findings, the trial court found no partnership existed between plaintiffs so that neither could bind the other. The court held that a stipulation was made by counsel in open court in conformity with CPLR 2104; that mutual mistake was not proven; that the stipulation finally disposed of the proceedings and that the attorney, Quartararo, had plaintiffs’ authority to represent them and to negotiate for them in court. The court found that plaintiff Phillips gave tacit approval to the settlement by his presence in court and that plaintiff Hallock gave Quartararo unqualified authority to act for him and, as a result, the stipulated settlement was binding on plaintiff Hallock as well. Plaintiffs challenge the findings of fact as not being supported by evidence and also raise what we deem a meritorious argument as to some evidentiary rulings of the court. During the course of the trial, in several instances, defense counsel read into evidence selected excerpts from plaintiffs’ depositions before trial. Plaintiffs’ counsel then sought to read other portions thereof pursuant to CPLR 3117 (subds [b], [d]), which were offered as being explanatory and relevant and which he contended indicated that plaintiffs consistently maintained that their attorney reached a settlement in direct contradiction of their explicit orders. The trial court disallowed such request on the rationale that excerpts from an examination before trial can be used on-cross-examination for impeachment but not on direct or redirect examination. We hold that this ruling contravenes CPLR 3117 (subd [b]), which entitles a party to introduce into *857evidence his deposition taken before trial to correct a false impression that reading only a part of the statement may give. Such evidence is not presented to bolster a witness’ testimony but rather simply to remedy any misimpression resulting from a selective reading of a deposition. This ruling was particularly damaging to plaintiffs’ contentions in that it hampered their counsel in presenting pertinent and explanatory testimony on the crucial issues of the extent of plaintiffs’ attorney’s authority to settle the case, on whether they understood that the settlement finally disposed of the case, and on their own credibility and consistency of position. The gravity of such rulings is underscored in the trial court’s decision which focused on plaintiff Hallock’s lack of credibility and its finding of approval of the settlement by plaintiff Phillips. Had plaintiffs’ counsel been permitted to present the full context of testimony on which these conclusions were made, the trial court may well have come away with a different impression. We find that plaintiffs were put at a prejudicial disadvantage by these rulings. However, moving on to plaintiffs’ further contention that the trial court’s finding was against the weight of the evidence, the record discloses that this matter is now some 13 years old. Plaintiffs have pursued their claims against the State assiduously. When their land was taken by the State, it was farmable and it contained a rich lode of gravel and sand. While in the State’s possession, the State took over 600,000 cubic yards of sand and gravel from it. This destroyed the land’s farmability and left the property considerably depleted of its natural asset. Plaintiffs were also confronted by substantial legal fees as a result of the protracted litigation. One thing leaps from the record which has not been contradicted by any of the three principals on one side of the stipulation, that is, plaintiffs’ counsel, Quartararo, had reported the State’s offer to plaintiffs as late as three days before trial. He was told then by both plaintiffs that it was unsatisfactory. His own testimony at the examination before trial is in conformity with plaintiffs’ position. He testified that he knew that he did not have the power to settle the case on the proposed terms and that he was to attempt to get more money or try the case. His treatment of his clients was, to say the least, cavalier. Plaintiff Phillips was allowed to come in and listen to the settlement proceedings. He was instructed to remain silent by Quartararo. Counsel never apprised the trial court that his other client, plaintiff Hallock, was ill, nor did he call Phillips forward to confirm his approval of the settlement. In view of this uncontradicted evidence of lack of authority, the decision below cannot stand. An unauthorized settlement is a nullity and unenforceable and may be set aside on reasonable application (Leslie v Van Vranken, 24 AD2d 658). Plaintiffs moved expeditiously to set aside the settlement. They informed the Power Authority on July 10, 1975 that they would not consent to the stipulated settlement. They paid their attorney $14,000 to secure their file and quickly secured new counsel to commence legal proceedings. These were commenced in October, 1975. Their application for relief was in all respects timely made. Plaintiffs are entitled to their day in court on the merits. Judgment reversed, on the law and the facts, the April 22,1975 stipulation of settlement is vacated and the actions of plaintiffs in the Supreme Court and Court of Claims are restored to their respective calendars, with costs. Main, Mikoll and Levine, JJ., concur; Mahoney, P. J., concurs in part and dissents in part in a memorandum; Yesawich, Jr., J., dissents and votes to affirm in a memorandum.