Maria McBride Prods., Inc. v Badger

[*1] Maria McBride Prods., Inc. v Badger 2015 NY Slip Op 50167(U) Decided on February 26, 2015 Civil Court Of The City Of New York, New York County d'Auguste, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2015
Civil Court of the City of New York, New York County

Maria McBride Productions, Inc., Plaintiff,

against

Madonna Badger and Badger & Winters Inc., Defendants.



032478/2014



For Plaintiff: John Hession, Esq., Dougherty, Ryan, Giuffra, Zambito & Hession

For Defendant: Daniel E. Strollo, Esq., Corso Law LLC
James E. d'Auguste, J.

Defendants Madonna Badger and Badger & Winters Group, Inc. (hereinafter collectively, "Badger") move, pursuant to CPLR 2104, for an order enforcing the parties' alleged stipulation to settle the above-captioned matter consisting of multiple e-mail exchanges, and for any further relief as this Court deems proper. For the reasons stated herein, Badger's motion to enforce the parties' stipulation is granted.

Factual and Procedural Background

This action arose from a breach of contract for wedding planning and event production services and was commenced on or about December 30, 2014 by the filing of a Summons and Endorsed Complaint seeking money damages in the amount of $8,410.32 plus interest, costs, and attorneys' fees. Strollo Aff. ¶ 5, Exh. A (Summons). Subsequent to the commencement of this action, on the same date, counsel for Plaintiff Maria McBride Productions, Inc. ("McBride"), John J. Hession, offered to settle this matter for 90% of the relief sought in the Endorsed Complaint within thirty days, following receipt of a properly executed release from McBride. This settlement offer was sent by e-mail from Mr. Hession to Badger's counsel, Daniel E. Strollo. Id. Exh. A. Settlement discussions continued by e-mail, and each such e-mail contains the respective sender's name typed at the end of the e-mail. In response, on December 31, 2014, Mr. Strollo requested that Mr. Hession send a proposed release to discuss with his client. Id. Exh. B. Mr. Hession's reply stated, "[n]o, you surely don't need me to send you a form release, but I will serve your client with process! You can send me a release with your offer." Id. Exh. C. On January 6, 2014, Mr. Hession sent an e-mail to Mr. Strollo stating that "the settlement demand just went up $150 to cover the costs for service!" Id. Exh. D. On the same date, Mr. Strollo responded, stating "[w]e will settle this for $7,719.29, being 90% of the relief sought in the Endorsed Complaint ($7,569.29) plus $150.00 in service costs" and that he will prepare a settlement agreement and release. Id. Exh. E. Mr. Hession then responded by e-mail stating to Mr. Strollo that his "counter-offer of settlement in the amount of $7,719.29 is accepted" and he will "await receipt of settlement agreement and release." Id. Exh. F.

Mr. Strollo then sent a release to Mr. Hession for his client to sign and stated that "[u]pon [*2]receipt of the same, I will forward a check to your firm, payable to your client." Id. Exh. G. The subsequent e-mails discuss adding "mutual non-disparagement language" to the release. See id. Exhs. H, I. On January 16, 2015, after Mr. Strollo indicated he did not wish to change the language in the release, Mr. Hession stated that "a default will be taken for the full amount as of 1/20/15!" Id. Exh. J. On or about January 20, 2015, Mr. Strollo sent Mr. Hession a check in the amount of $7,719.29, payable to McBride, with a form release to be signed. Id. Exh. K. On January 20, 2015, Mr. Hession e-mailed Mr. Strollo a revised release and stated that "[i]f the revised release is not acceptable, please file your Answer immediately, as your client is now in default." Id. Exh. L. On January 21, 2015 at 9:21 a.m., the check and form release sent by Mr. Strollo were received at Mr. Hession's office. Id. Exh. M (Federal Express proof of delivery). In an effort to settle this matter, Badger filed the instant motion on or about January 22, 2015, pursuant to CPLR 2104, seeking to enforce the parties' stipulation and such other relief as this Court deems just and proper. Some time after this motion was filed, McBride deposited Badger's check. Strollo Reply Aff. ¶¶ 4, 12-13; id. Exh. A.

Discussion

The legal question at issue is whether the e-mail negotiations between counsel, which contained their printed names at the end, constitute signed writings in accordance with CPLR 2104 in order to constitute a settlement agreement. The statute provides that "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney." CPLR 2104. New York State has a strong policy for promoting settlement, such that "settlements, once entered, are to be enforced with rigor" and thus must be "clear, final and the product of mutual accord." Bonnette v. Long Island Coll. Hosp., 3 NY3d 281, 286 (2004). This Court finds that there was mutual assent between the parties to agree to settle the action for $7,719.29.

The Court notes that Mr. Hession initially conveyed a settlement offer to Mr. Strollo by

e-mail on December 30, 2014 when the summons and complaint were originally filed. Mr. Hession's e-mail set out the material terms of the agreement: that Badger would "pay 90% ($7,569.29) of the debt owed ($8,410.32) within 30 days of receipt of a properly executed release from [McBride]." Strollo Aff. Exh. A. On January 6, 2014, Mr. Hession modified the settlement demand to include an additional $150.00 for service of process. Mr. Strollo offered to settle this action for $7,719.29, which is 90% of the debt owed plus $150.00. Mr. Hession clearly accepted this offer to settle by stating that "settlement in the amount of $7,719.29 is accepted" in an e-mail dated January 6, 2014. Id. Exh. F. As per his affidavit, Mr. Strollo asserts that it was his "intention to convey a firm, written acceptance of Attorney Hession's offer to settle, which was conveyed through his prior emails." Id. ¶ 10. Further, Mr. Strollo performed his obligations under the settlement agreement by sending a check to Mr. Hession in the amount of $7,719.29, payable to McBride, along with a form release to be executed by McBride. The Court has reviewed McBride's opposing arguments and finds them to be without merit, especially in light of the fact that McBride cashed Badger's settlement check in the amount of $7,719.29.

This Court's conclusion is consistent with the appellate authority on the subject. In Williamson v. Delsener, 59 AD3d 291 (1st Dep't 2009), the First Department held:

The e-mails exchanged between counsel, which contained their printed names at the end, constitute [*3]signed writings (CPLR 2104) within the meaning of the statute of frauds (see Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]), and entitle [that party] to judgment (CPLR 5003-a [e]). The agreement to settle at 60% of the amount demanded was sufficiently clear and concrete to constitute an enforceable contract (see Hostcentric Tech., Inc. v Republic Thunderbolt, LLC, 2005 WL 1377853, 2005 US Dist LEXIS 11130 [SD NY 2005]). [The other party's] subsequent refusal to execute form releases and a stipulation of discontinuance did not invalidate the agreement (see Wronka v GEM Community Mgt., 49 AD3d 869 [2008]; Cole v Macklowe, 40 AD3d 396 [2007]).

"The e-mail communications indicate that [the opposing party] was aware of and consented to the settlement; the record contains no indication to the contrary, or that counsel was without authority to enter into the settlement (see Hallock v State of New York, 64 NY2d 224 [1984]; cf. Katzen v Twin Pines Fuel Corp., 16 AD3d 133 [2005]). To the contrary, the record supports only the conclusion that counsel at least had apparent authority." (59 AD3d 291, 291-92.)

Accordingly, this Court finds that Mr. Hession's agreement via e-mail to settle the instant action is a signed writing pursuant to CPLR 2104 and, as such, is a valid and enforceable contract, despite Mr. Hession's refusal to execute a form release.

Conclusion

For the reasons stated above, Badger's motion, pursuant to CPLR 2104, is granted and the parties' stipulation to settle the instant action for $7,719.29 is hereby enforced. The Clerk is directed to enter judgment dismissing this action with prejudice. This constitutes the decision and order of this Court.

Dated: February 26, 2015

_________________________

James E. d'Auguste, J.C.C.