Bubeck v. Main Urology Associates, P. C.

—Order unanimously affirmed without costs. Memorandum: 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

Supreme Court properly denied plaintiffs 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 AD2d 572 , 574, lv denied 68 NY2d 610 ; see, Hallock v State of New York, 64 NY2d 224 , 228; Chattin v Klock Oil Co., 270 AD2d 852 ).

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 ). 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 ). 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 AD2d 758 , 759). 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 ), plaintiff is not entitled to vacatur of the stipulation (see, Javarone v Pallone, 234 AD2d 814 , 815, appeal dismissed 89 NY2d 1030 , 90 NY2d 884 ; Arvelo v Multi Trucking, supra, at 758-759 ). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Vacate Stipulation.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Lawton, JJ.