Opinion
2021–08890 Index No. 710677/21
10-04-2023
Lorena ALESSINA, et al., respondents, v. EL GAUCHITO II, CORP., et al., appellants.
Leavitt, Kerson & Sehati, Forest Hills, NY (Paul E. Kerson of counsel), for appellants. Joseph & Kirschenbaum LLP, New York, NY (Josef Nussbaum and Michael DiGiulio of counsel), for respondents.
Leavitt, Kerson & Sehati, Forest Hills, NY (Paul E. Kerson of counsel), for appellants.
Joseph & Kirschenbaum LLP, New York, NY (Josef Nussbaum and Michael DiGiulio of counsel), for respondents.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover on an instrument for the payment of money only, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered November 18, 2021. The order granted the plaintiffs’ motion for summary judgment in lieu of complaint.
ORDERED that the order is affirmed, with costs.
The plaintiffs are current and former employees of restaurants operated by the defendants El Gauchito II, Corp., and El Gauchito V, Inc., which are owned by the defendant Mario Civelli. According to the plaintiffs’ attorney, the parties agreed to a settlement of an employment dispute during a mediation. Shortly thereafter, the plaintiffs’ attorney emailed the defendants’ former attorney, Chris Lynch, asking him "to confirm the terms of the settlement we reached" earlier that day and setting forth the specific terms, which included the defendants’ agreement to pay $325,000 to the plaintiffs by May 3, 2021. Lynch replied, "Yes, confirmed." However, approximately a month later, Lynch informed the plaintiffs’ attorney that the defendants would not pay the settlement amount.
The plaintiffs commenced this action to recover on an instrument for the payment of money only by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The defendants opposed the motion, contending that there was no agreement between the parties. In an order entered November 18, 2021, the Supreme Court granted the plaintiffs’ motion for summary judgment in lieu of complaint. The defendants appeal.
"Pursuant to CPLR 2104, 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 1017, 1018, 31 N.Y.S.3d 605 ). "Further, as settlement agreements must abide by the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent" ( Herz v. Transamerica Life Ins. Co., 172 A.D.3d 1336, 1337–1338, 99 N.Y.S.3d 664 [internal quotation marks omitted]; see Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 285, 785 N.Y.S.2d 738, 819 N.E.2d 206 ; Forcelli v. Gelco Corp., 109 A.D.3d 244, 248, 972 N.Y.S.2d 570 ). Here, the material terms of the settlement were set forth in an email by the plaintiffs’ counsel, and accepted in a response subscribed by the defendants’ former attorney, who had apparent authority to settle the case on their behalf (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Amerally v. Liberty King Produce, Inc., 170 A.D.3d 637, 638, 95 N.Y.S.3d 338 ; Anghel v. Utica Mut. Ins. Co., 164 A.D.3d 1294, 1295, 82 N.Y.S.3d 541 ; Wil Can [USA] Group, Inc. v. Shen Zhang, 73 A.D.3d 1166, 1167, 903 N.Y.S.2d 429 ). The exchange of email correspondence between the attorneys for the parties setting forth all the material terms of the settlement and a manifestation of mutual assent was sufficient to constitute an enforceable settlement agreement between the parties (see Herz v. Transamerica Life Ins. Co., 172 A.D.3d at 1337–1338, 99 N.Y.S.3d 664 ; Martin v. Harrington, 139 A.D.3d at 1018, 31 N.Y.S.3d 605 ; Forcelli v. Gelco Corp., 109 A.D.3d at 248, 972 N.Y.S.2d 570 ). Contrary to the defendants’ contention, the agreement was not conditioned on the parties’ execution of a formal settlement and release, or any other further occurrences (see Guice v. PPC Residential, LLC, 212 A.D.3d 577, 577, 182 N.Y.S.3d 94 ; Herz v. Transamerica Life Ins. Co., 172 A.D.3d at 1338, 99 N.Y.S.3d 664 ; Trolman v. Trolman, Glaser & Lichtman, P.C., 114 A.D.3d 617, 618, 981 N.Y.S.2d 86 ; Forcelli v. Gelco Corp., 109 A.D.3d at 248, 972 N.Y.S.2d 570 ; Kowalchuk v. Stroup, 61 A.D.3d 118, 121, 873 N.Y.S.2d 43 ).
The plaintiffs established, prima facie, that the defendants failed to make the payment required by the settlement agreement, which was an "instrument for the payment of money only" within the meaning of CPLR 3213 (see Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 ; Kays v. Antzoulatos, 211 A.D.3d 925, 925–926, 181 N.Y.S.3d 581 ; Buckley v. Nicklous, 210 A.D.3d 575, 576, 180 N.Y.S.3d 6 ; J.D. Structures, Inc. v. Waldbaum, 282 A.D.2d 434, 436, 723 N.Y.S.2d 205 ). In opposition, the defendants failed to raise a triable issue of fact (see Kays v. Antzoulatos, 211 A.D.3d at 926, 181 N.Y.S.3d 581 ; Park Union Condominium v. 910 Union St., LLC, 140 A.D.3d 673, 673–674, 33 N.Y.S.3d 733 ). Accordingly, the Supreme Court properly granted the plaintiffs’ motion for summary judgment in lieu of complaint.
The defendants’ remaining contention is not properly before this Court.
DUFFY, J.P., CHAMBERS, CHRISTOPHER and WARHIT, JJ., concur.