Opinion
17200 Index No. 29365/19 Case No. 2022–02700
01-31-2023
Marjorie GUICE, Plaintiff–Appellant, v. PPC RESIDENTIAL, LLC, et al., Defendants, Rock Group N.Y. Corp., et al., Defendants–Respondents.
Law Office of Arnold DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant. Kaufman Borgeest & Ryan LLP, Valhalla (Jacob B. Sher of counsel), for Rock Group N.Y. Corp., respondent. Marshall Dennehey Warner Coleman & Goggin, New York (Michael P. Kelly of counsel), for RB N.Y. Enterprises, Inc., respondent.
Law Office of Arnold DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacob B. Sher of counsel), for Rock Group N.Y. Corp., respondent.
Marshall Dennehey Warner Coleman & Goggin, New York (Michael P. Kelly of counsel), for RB N.Y. Enterprises, Inc., respondent.
Renwick, J.P., Webber, Singh, Rodriguez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered January 12, 2022, which granted defendants RB N.Y. Enterprises Inc.’s and Rock Group N.Y. Corp.’s motions to enforce a settlement agreement with plaintiff, pursuant to CPLR 2104, unanimously affirmed, without costs.
A binding settlement agreement existed between plaintiff and defendants when plaintiff's counsel responded, "Confirmed. Thank you" to RB N.Y. Enterprises Inc.’s insurance carrier's email stating "This email is to confirm we are settled at $85,000" (see Matter of Philadelphia Ins. Indem. Co. v. Kendall, 197 A.D.3d 75, 80, 151 N.Y.S.3d 392 [1st Dept. 2021] ). Plaintiff's counsel had authority to accept the settlement; the confirmation came from counsel's email account; the parties reached an agreement as to the settlement amount; no conditions were attached to the confirmation; the parties prepared the release documents; and plaintiff's counsel forwarded the releases to plaintiff for signature. Contrary to plaintiff's arguments, the emails that followed the confirmation, discussing medical lien amounts, did not create a condition precedent to vitiate the agreement (see Rawald v. Dormitory Auth. of the State of N.Y., 199 A.D.3d 477, 478, 156 N.Y.S.3d 201 [1st Dept. 2021] ), and plaintiff's failure to sign the release documents amounted to no more than a ministerial condition precedent to payment under these facts ( Philadelphia Ins., 197 A.D.3d at 81–82, 151 N.Y.S.3d 392 ).
There is no reason to set aside this agreement based on "fraud, collusion, mistake or accident" ( Matter of Alsaede v. Kelly, 96 A.D.3d 495, 496, 946 N.Y.S.2d 158 [1st Dept. 2012] ). Plaintiff knew of her right shoulder injury and was advised of the need for surgery prior to settlement discussions. Plaintiff's mistake lies in the "consequence, future course, or sequelae of a known injury" ( Mangini v. McClurg, 24 N.Y.2d 556, 564, 301 N.Y.S.2d 508, 249 N.E.2d 386 [1969] ). The fact that plaintiff became dissatisfied with the settlement amount after receiving additional treatment for a known injury does not constitute sufficient grounds to invalidate the settlement (see Calavano v. New York City Health & Hosps. Corp., 246 A.D.2d 317, 319–320, 667 N.Y.S.2d 351 [1st Dept. 1998] ).