Opinion
2021-09501 Index No. 152651/17
10-18-2023
Yotta VLASTAKIS, respondent, v. MANNIX FAMILY MARKET @ VETERAN'S ROAD, LLC, appellant.
Torino & Bernstein, P.C., Mineola, NY (Bruce A. Torino and Ellie S. Konstantatos of counsel), for appellant. D'Agostino and Associates, P.C., Staten Island, NY (Jonathan R. D'Agostino of counsel), for respondent.
Torino & Bernstein, P.C., Mineola, NY (Bruce A. Torino and Ellie S. Konstantatos of counsel), for appellant.
D'Agostino and Associates, P.C., Staten Island, NY (Jonathan R. D'Agostino of counsel), for respondent.
BETSY BARROS, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated December 14, 2021. The order denied the defendant's motion pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. In September 2021, the defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message dated October 7, 2020. By order dated December 14, 2021, the Supreme Court denied the defendant's motion, determining that "there was no meeting of the minds or the creation of a settlement that is legally enforceable." The defendant appeals.
" CPLR 2104 governs the enforceability of settlement agreements" ( Martin v. Harrington, 139 A.D.3d 1017, 1018, 31 N.Y.S.3d 605 ; see Forcelli v. Gelco Corp., 109 A.D.3d 244, 248, 972 N.Y.S.2d 570 ). Pursuant to that statute, "a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by his or her attorney" ( Martin v. Harrington, 139 A.D.3d at 1018, 31 N.Y.S.3d 605 ; see CPLR 2104 ). "To be enforceable, a settlement agreement must set forth all material terms, and there must be clear mutual accord between the parties" ( Martin v. Harrington, 139 A.D.3d at 1018, 31 N.Y.S.3d 605 ). "An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104" ( Teixeira v. Woodhaven Ctr. of Care, 173 A.D.3d 1108, 1109, 103 N.Y.S.3d 120 ; see DeVita v. Macy's E., Inc., 36 A.D.3d 751, 751, 828 N.Y.S.2d 531 ).
Here, contrary to the defendant's contention, an email exchange between counsel did not evidence a clear mutual accord. The email dated October 7, 2020, purportedly confirming the settlement agreement, stated that it was memorializing the "tentative resolution" of the case and was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no email subscribed by the plaintiff, who is the party to be charged, or by her attorney confirming the agreement (see Kataldo v. Atlantic Chevrolet Cadillac , 161 A.D.3d 1059, 1060, 78 N.Y.S.3d 194 ).
Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties.
BARROS, J.P., CHRISTOPHER, FORD and WARHIT, JJ., concur.