TOCKER v. CITY OF NEW YORK

Indisputably, plaintiffs' acceptance of the settlement offer was communicated by their counsel to defendants' counsel in a telephone call. Accordingly, the agreement to settle the action was not "one made between counsel in open court" (CPLR 2104), and thus is not enforceable ( Matter of Dolgin Eldert Corp., 31 NY2d 1, 4-5, 8-11). The requirement that a settlement agreement be made in "open court" does more than advance the goal of eliminating disputes about the critical terms of the agreement. In addition, it serves a cautionary function by tending to ensure that acceptance is considered and deliberate ( id. at 10 ["the formality, publicity, and solemnity of an open court proceeding marked it as different from the preliminary atmosphere attached to informal conferences elsewhere"]). Whatever indeterminacy there may be in the term "open court," that term cannot be construed to include a telephone call between counsel. Moreover, to recognize a telephone call between counsel as an "open court" proceeding would invite disputes about what was said and "would constitute but a precursor to renewed litigation" ( id. at 11).