Opinion
SP 4445/09.
Decided January 25, 2010.
The Weinstein Group P.C., Attorneys for Respondent, Hauppauge, New York.
Goldstein v. Avrutine, Attorneys for Petitioner, Syosset, New York.
Petitioner commenced this nonpayment proceeding against Respondent to recover the sum of $63,158.37 for rent owed and to remove Respondent from the corner store of 567 Jericho Turnpike, Syosset, New York.
The parties appeared in court on numerous occasions including August 14, 2009, August 21, 2009, September 11, 2009, September 17, 2009, October 14, 2009, and October 26, 2009.
Respondent contends that the parties reached a settlement in October of 2009 and now moves to compel Petitioner to adhere to the terms of the settlement agreement allegedly reached but never executed. In support of the said motion, Attorney Lloyd J. Weinstein submits his affidavit, sworn to December 11, 2009, which makes the following points:
(a)The parties reached an accord on October 14, 2009, which is memorialized in the 8 page document entitled Settlement Agreement and Stipulation of Discontinuance with Prejudice.
(b)Respondent relied upon the said agreement and vacated the premises and "directed the undersigned (Lloyd J. Weinstein) to release a check from escrow in the amount of $5,000.00 to be paid to Respondent", (which should read Petitioner).
(c)Based upon the Respondent's reliance and actions taken thereon, the agreement reached between the parties on October 14, 2009, should be enforced.
Petitioner opposes the motion through the affirmation in opposition of Howard D. Avrutine, dated December 18, 2009. Petitioner states that no settlement was reached and Respondent's unilateral actions can't be employed to impose a settlement on Petitioner.
Petitioner contends that Mr. Weinstein was to draft a settlement agreement by Friday, October 16, 2009, and email same to Petitioner. However, none was sent by email. On October 23, 2009, the proposed settlement agreement was sent by Respondent to Petitioner.
Petitioner's attorney, Howard Avrutine sent Respondent's attorney Lloyd J. Weinstein the letter dated October 16, 2009, acknowledging receipt of the escrow check of $5,000.00, but indicating that no settlement would be reached until a written executed agreement is finalized:
Dear Lloyd:
We have yet to receive the proposed settlement documents with respect to the above-referenced proceeding. As you are aware, the matter has been scheduled for a trial on Monday, October 26, 2009 at 11 a.m. If we are not in receipt of the proposed documents by the close of business today, we will have no alternative but to proceed to trial on Monday.
On October 23, 2009, the Petitioner sent an email to Respondent inquiring about the proposed settlement agreement:
Further, my client acknowledges receipt of your escrow check in the amount of $5,000.00. Please be advised that, though the memo line indicates that the amount is paid as part of a "settlement", as no written settlement agreement has been reached at this time, the check will be deposited toward partial rent owed. The ultimate executed settlement agreement should specifically reference this payment.
On October 23, 2009, at 6:45 p.m., Respondent finally sent the proposed settlement agreement with the following statement:
Attached for your review and consideration is the proposed settlement agreement between the parties.
I believe that I incorporated all of the terms and conditions agreed to by and between the parties, but would welcome your comments and suggestions in this agreement.
As I advised you, I am actually engaged on Monday morning in an alternate appearance in Supreme Court. However, if you believe that the terms herein are acceptable, then the appearance in District Court can be "one sided" to advise the Court that the matter is resolved and we are finalizing the terms of the settlement agreement.
Howard Avrutine states in his affirmation that the proposed settlement agreement was missing several key items which were discussed by the parties in court on October 14, 2009:
While the draft agreement contained some of the items which were discussed by the parties in Court on October 14, 2009, several crucial elements were conspicuously absent. First, despite my insistence in Court that the settlement agreement require payment by the Tenant to Landlord for attorney fees as called for by the lease, no such provision is contained within the draft proposed settlement agreement. Second, I also insisted that the agreement contain provisions governing a default in connection with various payments that the contemplated settlement would include. I insisted upon preparation and delivery of a confession of judgment document and a judgment of eviction document to be held in escrow by my office to secure Tenant's obligations under any agreed settlement. In addition, there was to be a procedural mechanism pursuant to which the confession of judgment and judgment of eviction could be filed. It should also be noted that one of the issues being discussed in connection with the potential settlement concerned personal guarantees issued by the principal of the Tenant and his wife for sums due and owing under the lease. Those personal guarantees and a potential limitation thereon was part of the discussion as well as the execution of confessions of judgment by the guarantors. However, those issues were never resolved and the purported draft settlement agreement contains no provisions addressing those issues.
The Court concludes that no settlement agreement was reached between the parties. The correspondence (emails) exchanged between the parties clearly demonstrate that no binding settlement agreement was reached between the parties as required by CPLR 2014. The fact that Respondent sent the $5,000.00 check and vacated the premises were unilateral actions taken by Respondent with no justifiable reliance on any settlement discussions or agreement reached. In short, no settlement was consummated and Respondent acted precipitously.
In the case at bar, the alleged settlement agreement did not meet the criteria set forth in Bonnette v. Long Island College Hospital , 3 NY3d 281 , 785 NYS2d 738 (Ct. of Appeals, 2004):
For all of these reasons, we hold that to be enforceable under CPLR 2014 an out-of-court settlement must be adequately described in a signed writing. Bonnette's settlement with the hospital did not meet that requirement. Accordingly, the order of the Appellate Division should be affirmed, with costs and the certified question answered in the affirmative.
Similarly, the same standard was applied by the Second Department in denying enforcement to a purported settlement in conjunction with an email sent in the case of DeVita v. Macy's East, Inc. , 36 AD3d 751 , 828 NYS2d 531 (2d Dep't, 2007):
To be enforceable, stipulations of settlement must conform to the requirements of CPLR 2104 ( see Matter of Dolgin Eldert Corp., 31 NY2d 1, 8, 334 NYS2d 833, 286 NE2d 228; Graffeo v. Brenes, 85 AD2d 656, 657, 445 NYS2d 223). The plain language of CPLR 2104 requires that such an agreement be in writing and signed by the parties (or attorneys of the parties) to be bound by it ( see Bonnette v. Long Is. Coll. Hosp. , 3 NY3d 281 , 785 NYS2d 738, 819 NE2d 206). Contrary to the appellant's contention, a confirmatory e-mail sent to the plaintiff's former attorney by counsel to the insurer of one of the defendants, either alone or in conjunction with an e-mail sent by the plaintiffs' former counsel in response, did not constitute a writing sufficient to bring the purported settlement into the scope of CPLR 2104 ( cf. Page v. Muze, Inc., 270 AD2d 401, 705 NYS2d 383; Rosenfeld v. Zerneck , 4 Misc 3d 193, 776 NYS2d 458). In addition, the purported settlement was not enforceable under the "open court exception" provided for in CPLR 2104 ( Matter of Dolgin Eldert Corp., supra at 9, 334 NYS2d 833, 286 NE2d 228; see Falcone v. Khurana, 294 AD2d 535, 742 NYS2d 871; Gustaf v. Fink, 285 AD2d 625, 626, 728 NYS2d 751; Avaltroni v. Gancer, 260 AD2d 590, 688 NYS2d 650; see also 22 NYCRR 202.26[f]).
Again, in Ruffini v. 41 Fifth Owners Corp., 21 Misc 3d 1140(A), 880 NYS2d 226 (N.Y.City Civ. Ct., 2008):
The parties' e-mail exchange does not conform to the requirements of CPLR 2104 for a stipulation of settlement capable of enforcement. It was not made in open court, and was never signed by the parties or their attorneys ( see Weldon v. 210 E. 73rd Owners Corp., 15 Misc 3d 1125A, 2007 NY Slip Op 50838[U], [Sup Ct, NY County 2007, Stallman, J.]). Under the circumstances presented, the e-mail exchange does not constitute an enforceable stipulation of settlement within the requirements or contemplation of CPLR 2104 ( id.; see Bonnette v. Long Island Coll. Hosp., 3 NY3d 281, 286 [to be enforceable under CPLR 2104, an out-of-court settlement must be adequately described in a signed writing]; McCoy v. Feinman, 99 NY2d 295, 302 [to be binding, a stipulation "must either be reduced to a properly subscribed writing or entered orally on the record in open court"]; Klein v. Mt. Sinai Hosp., 61 NY2d 865, 866 [stipulation is not binding "unless it is made in open court between counsel, contained in a writing subscribed by the party or his attorney, or reduced to the form of an order and entered"]; DeVita v. Macy's East, Inc. , 36 AD3d 751 [2d Dept 2007]; contra Hostcentric Technologies, Inc. v. Republic Thunderbolt, LLC, 2005 WL 1377853 , [SD NY 2005] [e-mailed offer and acceptance of "final settlement counter-proposal" created binding contract and enforceable settlement agreement]). Contrary to petitioner's contention, the court finds on this record that a binding stipulation of settlement was not created by virtue of the September 2 e-mail.
The actions by Respondent in relinquishing the premises and/or having the $5,000.00 paid to Petitioner prior to the settlement was executed by both sides does not justify the court in finding that a settlement was reached. There is no evidence that Respondent was misled or deceived by Petitioner in relying upon the proposed settlement that was not executed. See Bedrosian v. McCollum, 209 AD2d 778, 617 NYS2d 997 (3d Dep't, 1994).
CONCLUSION
The parties did not reach a settlement. This case is set down for trial on Wednesday, February 17, 2010, at 11:00 a.m.
So Ordered: