Ruffini v 41 Fifth Owners Corp.
Annotate this CaseDecided on December 1, 2008
Civil Court of the City of New York, New York County
Nina Ruffini, Petitioner-Tenant,
against
41 Fifth Owners Corp., MAXWELL-KATES, INC. & REGINA SZTRYKLER, Respondents-Landlord, -and- Hampton Management Company a/k/a/ The Olnick Organization & the NYC Department of Housing Preservation And Development, Respondents.
L & T 006200/2007
Schechter & Brucker, PC
Attorneys for Petitioner
350 Fifth Avenue, Suite 4510
New York, NY 10118
By: Jose Saladin, Esq.
Cantor, Epstein & Mazzola, LLP
Attorneys for Respondents
49 West 37th Street, 7th Floor
New York, NY 10018
By: Gary S. Ehrlich, Esq.
NYC Department of Housing Preservation and Development
l00 Gold Street, 3rd Floor
New York, NY 10008
David B. Cohen, J.
In this HP proceeding, petitioner moves to enforce a stipulation of settlement
which petitioner's counsel sent to respondent's attorney via e-mail, and which petitioner claims
respondent's counsel agreed to via e-mail to petitioner's attorney on September 2, 2008 (the
"September 2 e-mail").[FN1]
Although the parties contemplated that the transmitted stipulation of settlement would be
executed, negotiations broke down before the parties and their attorneys signed the stipulation.
The parties' e-mail exchange does not conform to the requirements of CPLR 2104 for a [*2]stipulation of settlement capable of enforcement.[FN2] 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], *1 [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 [2004] [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 [2002] [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 [1984][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 E., Inc., 36 AD3d 751 [2d Dept 2007]; contra Hostcentric Technologies, Inc. v Republic Thunderbolt, LLC, 2005 WL 1377853, *10 [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.
Even assuming that the parties were in agreement, the September 2 e-mail and subsequent e-mails between counsel later the same day reveal the parties'(or at least respondent's) lawyers' expectation that the stipulation of settlement would not be binding until signed by them and their respective clients, which never occurred. As such, it cannot be said that the parties agreed to a binding stipulation of settlement (see Estate of Frank A. Amendola v Kendzia, 48 AD3d 1173, 1174 [4th Dept 2008], quoting Scheck v Francis, 26 NY2d 466, 469-470 [1970] ["It is well settled that if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by . . . them, they are not bound and may not be held liable until it has been written out and signed"]).
"If settlements, once entered, are to be enforced with rigor and without a searching
examination into their substance, it becomes all the more important that they be clear, final and
the product of mutual accord. These concerns obviously lie at the heart of CPLR 2104, a neutral
statute enacted to promote certainty in settlements, which benefits all litigants" (Bonnette v
Long Island Coll. Hosp., 3 NY3d at 286).
Moreover, parties must have the "flexibility to conduct settlement negotiations
without fear of being bound by preliminary offers" (id.)
[*3]Conclusion
Accordingly, petitioner's motion is denied. This matter is adjourned to the calendar in Part B on January 8, 2009, at 2:15 p.m. for hearing on petitioner's pending motion for attorneys fees.
This constitutes the decision and order of the court.
The clerk shall serve a copy of this decision and order upon all parties.
Dated:December 1, 2008
New York, New York
___________________________________
David B. Cohen, J.H.C
TO:
Schechter & Brucker, PC
Attorneys for Petitioner
350 Fifth Avenue, Suite 4510
New York, NY 10118
By: Jose Saladin, Esq.
Cantor, Epstein & Mazzola, LLP
Attorneys for Respondents
49 West 37th Street, 7th Floor
New York, NY 10018
By: Gary S. Ehrlich, Esq.
NYC Department of Housing Preservation and Development
l00 Gold Street, 3rd Floor
New York, NY 10008
Footnotes
Footnote 1: The relevant e-mail from Mr.
Ehrlich, for respondent, to Mr. Saladin, for petitioner, on September 2, 2008, at 10:54 a.m.,
states: "My client has approved the latest stipulation. When you have a better idea of when I may
expect an executed stipulation back from your client let me know so that I may make
arrangements for a check to be drafted" (petitioner's exhibit B).
Footnote 2: CPLR 2104 provides: "An
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 or reduced to the form of an order and entered. With respect to
stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms
of such stipulation shall be filed by the defendant with the county clerk."
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