Before the Court are three separate motions all predicated on the fact that plaintiff's counsel has had no contact with his client since May 17, 2006 despite numerous attempts to locate him. Until he moved out-of-state in November 2005, plaintiff had cooperated in the prosecution of this action. After plaintiff moved, although he did attend his examination before trial and a physical

examination demanded by defendant Sonia Velez in January 2006, plaintiff failed to appear for a second Independent Medical Examination demanded by defendant Juan Morales- Ramierez.

Nevertheless, a note of issue was filed by plaintiff on March 12, 2007.

Turning to plaintiff's application first, plaintiff's counsel seeks an order pursuant to Disciplinary Rules of the Code of Professional Responsibility §1200.46 (f-1) and NY Rules of Court, Second Department, §691.20(d)(2), fixing and allowing disbursements with monies from a proposed settlement offer for attorney's fees, various medical liens and with the remainder to the Lawyer's Fund for Client Protection (Seq. #002).



Counsel for plaintiff had, prior to the instant applications, successfully negotiated settlement [*2][*3]offers from both co-defendants' carriers for a total sum of $17,500.00 and submits letters to that effect. Although at the time the carriers were aware of the difficulty in locating plaintiff, counsel never had the opportunity to discuss the offer with his client and receive an executed released.



Defendant Juan Morales-Ramierez objects to this application while defendant Sonia Velez submits no opposition.

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Although generally a stipulation of settlement may bind a client even where it exceeds counsel's actual authority (see Hallock v. State of New York, 64 NY2d 224), here an actual settlement agreement was never reached, in open Court or otherwise.



While plaintiff's counsel has the authority as set forth in the retainer agreement to enter into negotiations on his behalf, plaintiff did not grant the express authority to his attorney to compromise or settle his claim on his behalf. From the facts presented this Court cannot conclude that counsel had the apparent or implied authority to settle this action in plaintiff's absence.



Even had counsel gone so far as to sign a stipulation of settlement, the carrier could not rely on counsel's appearance of authority because they knew plaintiff could not be located (Id).



Accordingly, the Court determines that since the Disciplinary Rules of the Code Professional Responsibility §1200.46(f-1) and the Rules of the Court, Second Department, §691.20(d)(2) do not apply to actions that have not yet settled but were only in the offering stage, plaintiff counsel's application is denied.



Concerning defendant Juan Morales-Ramierez' motion to dismiss the complaint pursuant to CPLR §3126 for plaintiff's failure to appear at his second Independent Medical Examination, that application based on want of prosecution also is denied (Seq. #001).



There is no indication that plaintiff actually knew of the second Independent Medical Examination date much less refused or willfully failed to obey the Court ordered stipulation to appear. Plaintiff had previously attended the Independent Medical Examination scheduled by movant's co-defendant even after he moved out-of-state (see, e.g., Read v. Dickson, 150 AD2d 543).



For that same reason the Court does not place much credence to movant's assertion of severe prejudice. Although defendant is entitled to his own Independent Medical Examination nothing here suggests that the results would be any different from those revealed in the first examination which plaintiff attended. [*4][*5]



With respect to defendant Juan Morales-Ramierez' motion to vacate the note of issue because discovery has not been completed, it is denied for the reasons set for below (Seq. #003).



Since defendant's CPLR §3216 application for want of prosecution is denied, the Court sua sponte considers CPLR Rule 3404 for the dismissal of abandoned cases. An action may be deemed abandoned only within the context of a post-note of issue situation (Johnson v. Sam Minskoff & Sons, Inc., 287 AD2d 233).



However, an action may not be deemed abandoned from a motion or Pre-Trial Calendar (cf. Johnson v. Brooklyn Hospital Center, 295 AD2d 567). The striking or marking off the calendar

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can only occur from an actual calendar call. Moreover, the Clerk makes the appropriate entry without the necessity of an additional Court order.



Accordingly, the undersigned directs the Pre-Trial Conference Clerk to dispense with the necessity

of a scheduled Pre-Trial Conference. It is further directed that the Clerk of the Calendar in the Trial

Part place this matter down for MAY 31 2007.



On that date or another adjourned date thereafter, should plaintiff personally fail to appear with his attorney, the Clerk shall cause the entry to be made "dismissed pursuant to CPLR 3404." (Uniform Rules - Trial Courts §202.27).



Plaintiff's counsel is directed to provide the Calendar Control Part Clerk with a copy of this order.



Should plaintiff appear in New York or be located beforehand, plaintiff's counsel is directed to arrange for a telephone conference call with chambers.



Should plaintiff be located after the CPLR §3404 dismissal, counsel is permitted to make applications for restoration pursuant to CPLR §5015(a)(1) which requires an excuse for the default and an affidavit of merit. [*6][*7]

Dated:May 1, 2007...........................................................J.S.C.

PUB