Catsiapis v Giano   2016 NY Slip Op 30863(U)   May 11, 2016   Supreme Court,   Queens County Docket Number: 21642/2012   Judge: Denis J. Butler is an example of overreach and how it can eventually undermine the entire project.  Defendant attorneys almost always want a confidentiality clause, and will sometimes stretch out the negotiation on the basis that they want an ironclad agreement.  Sometimes it backfires.

“This is a legal malpractice action, which was settled on the record in open court before Special Referee, Elizabeth Yablon on June 1, 2015. The stipulation of settlement provided that “upon the presentation of the release as well as a hold-harmless agreement, and a non-disparagement slash confidentiality agreement in which the plaintiff agrees not to discuss this matter with anyone but governmental agencies, or upon a subpoena from – – or upon a subpoena that, as well as a hold-harmless agreement from the plaintiff as to any potential liens in this matter. . . . (sic)” When plaintiff was allocuted on the record, he answered in the affirmative when asked: “you understood that this settlement that is being paid to you by Peter Giano and Gordon and Gordon is a result of legal malpractice claim that bears index number 21642 of 12?” and “[y]ou understand that means that you cannot go after any of these individuals or entities again.” (Sic.) After asking these questions, plaintiff’s counsel began to state “[w]e had discussions concerning –-” whereupon the referee stated that “we are dealing with this case.” (Sic.) Plaintiff’s counsel indicated that he understood, but wanted it clear. After a discussion off the record, Peter Gordon was sworn in to be allocuted. At a later point on the record, attorneys for the Gordon defendants and for Giano wanted to make sure that confidentiality would be maintained. In accordance with the terms therein, plaintiff sent defendants Peter S. Gordon, Esq. and Gordon & Gordon, PC (collectively Gordon defendants) the release, hold harmless and confidentiality agreements. Gordon defendants refused to sign the documents stating that the terms of the written confidentiality agreement do not accurately reflect the parties oral agreement made in open court. Gordon defendants maintain that the agreement made in open court forbade plaintiff from discussing this matter except with limited circumstances. Plaintiff maintains that he agreed not to disclose the terms of the stipulation of settlement; however, he would be permitted to “generally describ[e] the claims in this action and the amount recovered as long as the parties are not named.” In effect, plaintiff sought to preserve its right to bring a legal malpractice action against the attorney who previously represented him in the underlying action for injuries resulting from an automobile accident.”

“Now plaintiff seeks to reform the stipulation of settlement and compel defendants to pay the agreed upon sums of money. Alternatively, plaintiff seeks to vacate the stipulation of settlement and restore this case to the trial calendar with a date certain for trial. Gordon defendants do not oppose the branch of the motion to vacate the stipulation and restore this case to the trial calendar as there was no meeting of the minds. In the cross motion, defendant Steve Giano, Esq. seeks to compel the Gordon defendants to sign the written drafts of the agreements prepared in accordance with the stipulation of settlement spread on the record. ”

“Considering the stipulation of settlement as a whole, there is ambiguity as to whether the parties intended the confidentiality of “this matter” to mean that only the terms of the stipulation of settlement are confidential, or the terms of the stipulation of settlement and all allegations forming the basis of the claim are 3 [* 3] confidential. This Court cannot reform the stipulation of settlement to conform to what it thinks is proper. Accordingly, the branches of the motion to reform the stipulation of settlement and compel payment and branch of the cross motion to compel execution of the agreements are denied. The branch of the motion to vacate the stipulation of settlement and schedule a trial date is granted. This action is restored to the trial calendar and the parties shall appear in the Trial Scheduling Part on June 27, 2016 at 9:30 a.m.”