Dunning v. Shell Oil Co.

¶1dissent and vote to modify in the following memor randum by Casey, J. Casey, J. (dissenting). Wé respectfully dissent. The majority has concluded that the stipulation of settlement, which is the subject of this appeal, should be summarily enforced as a judgment only insofar as it requires the defendants and third-party defendant to pay to the plaintiffs the total sum of $60,000, but that the amount of that sum to which each plaintiff is entitled should be determined in a hearing. This determination defies the clear and unequivocal terms of the stipulation, which provide not only that “[t]his is a settlement in open court and may be enforced as a judgment pursuant to Section 2104 and 3215, subdivision (h) paragraph (1) of the CPLR and Rule 861.19 of the Third Department Special Rules” but also that “[t]he attorneys representing the estate and the insurance company [plaintiffs’ fire insurance carrier] have agreed that the $60,000.00 will be divided between their respective clients as follows: $16,955.14 to Evelyn M. Dunning and the Estate of Edward M. Dunning, and the balance of $43,044.86 to Firemen’s Fund Insurance Company”. Since the stipulation provides the exact dollar and cent amount that each plaintiff is to receive of the $60,000 and all the parties have expressly agreed thereto, these amounts cannot now run the risk of being changed by a hearing. Contrary to the majority’s statement that all the parties now agree that $60,000 is satisfactory as a settlement figure, the attorney for the insurer vigorously and, in our opinion, correctly urges that the $60,000 is acceptable only on condition that the carrier receive $43,044.86, and that argument accords with the express terms of the settlement. The only objections to enforcement of the stipulation in its entirety come from the plaintiffs, the Dunnings. They claim that their agreed share of $16,955.14 should be increased after a hearing because (1) the settlement was not authorized by a court-ordered substitution of a proper party for the decedent Edward M. Dunning, and (2) because of the failure , of the attorney for the insurer to have a subrogation receipt in his possession signed by the decedent despite his implied representation to the contrary. Both of these arguments lack merit. In regard to the first, the stipulation of settlement states that “[t]he plaintiff Edward M. Dunning is deceased and Mr. Cohn represents his estate and is authorized here to speak for the estate”. Since Mr. Cohn does in fact represent the estate, and was present and agreed to the stipulation of settlement, the settlement cannot now be vitiated by the Dunnings for the lack of a formal order of substitution, a ministerial act at most. Secondly, the Dunnings have no claim to the full $60,000 for the failure of the attorney for the fire insurance carrier to have had a subrogation receipt signed by the decedent. Subrogation *678is equitable in nature (57 NY Jur, Subrogation, § 28, p 77) and depends on the amount paid by the insurer, not on its attorney’s possession of a receipt. The plaintiff widow does not contend that she and her husband never received any payment from the insurer, only that the attorney for that company has no receipt. Significantly, the stipulation contains no condition covering the existence of a subrogation receipt. All the parties having expressly agreed thereto, the stipulation should be summarily enforced according to its terms and in full (CPLR 2104, 3215, subd [h]; Teitelbaum Holdings v Gold, 48 NY2d 51), and the order appealed from should be modified to so provide.