Weldon v 210 E. 73rd Owners Corp.

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[*1] Weldon v 210 E. 73rd Owners Corp. 2007 NY Slip Op 50838(U) [15 Misc 3d 1125(A)] Decided on April 19, 2007 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2007
Supreme Court, New York County

James Weldon and Diane Weldon, Plaintiff,

against

210 East 73rd Owners Corp., Defendant.



107301/06



For Plaintiff:

Kurzman, Karelsen & Frank, LLP

By: Andrew I. Bart, Esq.

Dale Degenshein, Esq.

230 Park Avenue

New York, New York 10169

For Defendant:

Mound, Cotton, Wollan & Grengrass, Esqs.

By: Kenneth M. Labbate, Esq.

Sanjit Shah, Esq.

One Battery Park Plaza

New York, New York 10004

Michael D. Stallman, J.

In this cooperative governance dispute, defendant cooperative corporation moves for an order inter alia confirming and enforcing what movant alleges constitutes a settlement agreement, dismissing the remaining (Fourth) cause of action, and awarding sanctions and attorneys' fees.

This motion highlights a recurrent litigation issue: What is the legal consequence of an exchange of e-mails between litigants? Although e-mails might best be viewed simply as correspondence in a different form, transmitted by a new medium, the prevalent informality and brevity of e-mail style and the speed of transmission frequently without reflection time can cause ambiguity and uncertainty in the litigation context.

Movant alleges that the attorneys' exchange of e-mails constitutes an enforceable settlement agreement. It does not. The initiatory e-mail contains a summary or outline of a settlement proposal and requests "Please confirm, without prejudice, that the following is the settlement proposal:" The simple one-line response was "Confirmed without prejudice." Thus, at most, the two parties agreed that what was contained in the first e-mail, was the "proposal."

There is no language in either e-mail evincing an intent or mutual understanding that the first e-mail was a final settlement offer capable of acceptance or that the first, upon acceptance, would be viewed as a complete, final contract. Indeed, the use of the word "proposal," and the request to confirm the proposal, indicated a prudent, lawyerly attempt on both sides to confirm the substance of what was "on the table" before the final stipulation or agreement could be drafted and exchanged for the customary vetting, revision and execution.

Moreover, the subject 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. Alternatively, it is not a subscribed writing. It was not signed by the clients or the attorneys. Under the circumstances presented, despite movants' contention that the e-mails contained electronic signatures (something that need not be ruled on here), the e-mail exchange constitutes neither an enforceable contract nor a stipulation within the requirements or contemplation of CPLR 2104. See DeVita v Knoller Companies, Inc., 36 AD3d 751 (2nd Dept. 2007).

The motion is accordingly denied. Consequently, movant has not demonstrated entitlement to dismissal of the only remaining (Fourth) cause of action, which seeks replevin of [*2]plaintiffs' financial records. Movant has not proven entitlement to sanctions under 22 NYCRR Rule 130 or to attorneys' fees.

Counsel are reminded of the compliance conference scheduled for May 3, 2007. After working out a draft stipulation resolving remaining disclosure issues, the attorneys shall discuss settlement with the Court.

This decision constitutes the order of the Court.

DATED: April 19, 2007ENTER:

New York, New York/s

Michael D. Stallman, J.S.C.