Opinion
Index No. 604603/2023
09-23-2024
Vera Kruta, Plaintiff, v. Ryan O'Neill, Defendant.
GRUENBERG KELLY DELLA Attorneys for Plaintiff. CARMAN, CALLAHAN & INGHAM, LLP, Attorneys for Defendant,
Unpublished Opinion
GRUENBERG KELLY DELLA Attorneys for Plaintiff.
CARMAN, CALLAHAN & INGHAM, LLP, Attorneys for Defendant,
HON. CHRISTOPHER MODELEWSKI, J.S.C.
Upon the E-file document list numbered 31 to 40 read and considered on the motion by defendant for an order pursuant to CPLR 2104 enforcing a purported settlement agreement between counsel for the parties and compelling plaintiff to execute a general release; it is
ORDERED that the motion by defendant for an order pursuant to CPLR 2104 enforcing a purported settlement agreement between counsel for the parties and compelling plaintiff to execute a general release, is denied, as the email communications from plaintiff's counsel, relied upon by defendant to establish the purported settlement agreement, do not comply with CPLR 2104. Where, as here, a settlement is not made in open court, the stipulation of settlement "must conform to the criteria set forth in CPLR 2104" (Little v County of Nassau, 148 A.D.3d 797, 48 N.Y.S.3d 723 [2d Dept 2017]). The "plain language of CPLR 2104 requires that the agreement itself must be in writing, signed by the party (or attorney) to be bound" (Kataldo v Atlantic Chevrolet Cadillac, 161 A.D.3d 1059, 1060, 78 N.Y.S.3d 194 [2d Dept 2018]). "An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104" (Harleysville Ins. Co./Nationwide Gen. Ins. Co. v Estate of Boser, 219 A.D.3d 469, 194 N.Y.S.3d 106 [2d Dept 2023][internal quotations and citations omitted]). "An email message may be considered "subscribed" as required by CPLR 2104, and, therefore, capable of enforcement, where it contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature" (Kataldo v Atlantic Chevrolet Cadillac, 161 A.D.3d at 1060, 78 N.Y.S.3d 194). Here, the email communications from plaintiff's counsel do not state the amount of the settlement, which is a material term of the settlement. Thus, there is no email communication subscribed by plaintiff's counsel containing all of the material terms of the purported settlement. In the absence of a writing subscribed by plaintiff or her attorney containing the amount of the settlement, the purported settlement agreement is unenforceable as against plaintiff (see Phipps v Conifer Realty, LLC, 220 A.D.3d 654, 197 N.Y.S.3d 310 [2d Dept 2023]; Vlastakis v Mannix Family Mkt. @ Veteran's Rd., LLC, 220 A.D.3d 908, 198 N.Y.S.3d 376 [2d Dept 2023]; Kataldo v Atlantic Chevrolet Cadillac, supra; Little v County of Nassau, supra). In accord with plaintiff's arguments in opposition, the Court finds that the on the record statement of plaintiff's counsel at the court appearance held on June 26, 2024, does not comply with CPLR 2104, as no settlement amount was indicated on the record. In addition, the telephonic communications between counsel for the parties and the email communications regarding what another attorney may have said, are inadmissible hearsay and otherwise do not comply with CPLR 2104. The Court has considered the remaining arguments of defendant and finds that they lack merit. Accordingly, defendant's motion is denied (see Phipps v Conifer Realty, LLC, supra; Vlastakis v Mannix Family Mkt. @ Veteran's Rd., LLC, supra; Kataldo v Atlantic Chevrolet Cadillac, supra; Little v County of Nassau, supra; see also Teixeria v Woodhaven Ctr. of Care, 173 A.D.3d 1108, 103 N.Y.S.3d 120 [2d Dept 2019]; DeVita v Macy's East, Inc., 36 A.D.3d 751, 828 N.Y.S.2d 531 [2d Dept 2007]; cf. Allesina v El Gauchito II, Corp., 220 A.D.3d 645, 198 N.Y.S.3d 94 [2d Dept 2023]; Herz v Transamerica Life Ins. Co., 172 A.D.3d 1336, 99 N.Y.S.3d 664 [2d Dept 2019]; Forcelli v Gelco Corp., 109 A.D.3d 244, 972 N.Y.S.2d 570 [2d Dept 2013]).
The foregoing constitutes the decision and Order of the Court.