In these circumstances, this court finds at best revolting the behavior of New York Paving. This court finds that New York Paving accepted the settlement and rejects the argument [*4] that the agreement should be eliminated because the applicant did not comply with the conditions of CPLR 2104. In addition, the applicant would be very biased if the court annulled the settlement and included the complaint in the trial schedule, given that the applicant settled her complaint with Consolidated Edison by relying on Paving`s settlement offer of New York. “A party may be prevented from availing itself of CPLR 2104 in order to avoid an extrajudicial oral disposition if it turns out that the disposition was actually made and invoked by the opposing party” (Bates Real Estate v. Marquette Land Co., 93 AD2d 939; Conlon v. Concord Pools Ltd. 170 AD2d 754, citing Smith v. Lefrak Org., 142 AD2d 725). New York Paving is therefore precluded from relying on CPLR 2104 to terminate the parties` oral agreement to resolve the complaint (see Tenwood Associates v. United States Fire Ins.
Co., 104 Misc 2d 467; Case of Dolgin Eident Corp., 31 NY2d 1,11). Furthermore, the tribunal notes that, where an error has been made with respect to the person entitled to negotiate and collect the claim between the applicant and New York Paving, the parties who negotiated the transaction on behalf of New York Paving have the liability which does not constitute a basis for the evacuation of the settlement agreement (cf. Hallock v. State of New York, 64 NY2d 224). In support of his application for a judgment against New York Paving, the applicant invokes CPLR 5003 (a), which allows an applicant to render judgment against a number of parties to the offence on the expiry of a period of twenty-one days from the date of filing of the closing documents [interest judgment, fees and payments]. The applicant states that twenty-one days have elapsed since the date on which the New York lawyer Paving received her final documents relating to the transaction and that payment of the offer has not taken place. Consequently, the applicant claims that it may rule accordingly. The applicant also claims that if New York Paving were not in a condition to have completed the settlement agreement, it would be seriously affected after receipt and deposit of the transaction cheque from the defendant co-parties Consolidated Edison. In addition, the applicant submits that New York Paving does not put forward any reason to oust the agreement, such as fraud or collusion. So what happens if one of the parties to a provision is unhappy a posteriori and wants to evacuate the provision? On or about December 2004, after the discovery was complete, the plaintiff`s attorney, Michael Zuller, began transaction discussions with supplier Joseph Hutchinson of Crawford Technical Services, the New York Paving third-party provider that handled the claim for New York Paving. Zuller also spoke with John Ferretti, a New York Paving attorney.
In July 2005, Mr. Ferretti extended an offer of $15,000.00 to pay the claim against New York Paving. After that, Mr. Zuller secured a $2,500.00 transaction offer from co-defendant Consolidated Edison, counseled Sir. . . .