A New York State Supreme Court decision in Rivers v. Genesis Holding LLC 812 N.Y.S. 2d 301 is a powerful reminder about the perils of settling a case involving an estate before all the “t” s are crossed and all the “i” s are dotted. This negligence action settled for only $7,500 in New York County (Manhattan) . Plaintiff died after commencing the action to recover for injuries she suffered in a slip and fall. After her administratrix was substituted , attorneys for the parties agreed on a settlement subject to the Surrogate’s Courts approval. This settlement was made in open court and was marked “settled” on the court system’s computer.

Subsequently, the plaintiff’s administratrix decided that she did not want to accept the settlement and sought instead to proceed to trial. While CPLR 2104 provides that a settlement between counsel in open court is binding and not easily set aside, certain circumstances do permit the vacating of a settlement by motion. Here, the court drew the analogy between an infant’s compromise which requires a separate, formal compromise proceeding in order to approve a settlement involving a minor. In such cases, all settlements are merely tentative until approved.

The court went on to determine that where Surrogate’s approval is required, a settlement made in another court is tentative until such approval is obtained. Since the Surrogate’s approval was never obtained, the Supreme Court settlement was vitiated and the matter was restored to the trial calendar. This case stands as a reminder to defendants that “it aint over till it’s over” and that by allowing a settlement to be conditioned upon Surrogate’s approval -as was done here�defendants’ counsel run the risk of letting a favorable settlement unravel.